# YASHWANT SINHA & ORS v. CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR & ANR

- **Citation:** [2019] 5 S.C.R. 638
- **Court:** Supreme Court of India
- **Decided:** 2019-04-10
- **Bench:** Ranjan Gogoi, Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yashwant-sinha-ors-v-central-bureau-of-investigation-through-its-director-anr-33722
- **Pages:** 41

## Headnote

Official Secrets Act, 1923: ss.3 and 5 - Review petition -
Preliminary objection raised by the respondent challenging the
maintainability of the review petition on the ground that the three
documents appended to the review petition and relied upon by the
review petitioners were unauthorisedly removed from the office of
the Ministry of Defence and and for the said reason, the review
petition was not maintainable as said act violated the provisions of
ss.3 and 5 of Official Secrets Act - The said three documents were
admittedly published in two newspapers on different dates - Held:
No law enacted by Parliament was brought to notice which
specifically barred or prohibited the publication of such documents
on any of the grounds mentioned in Art.19(2) - Insofar as the claim
of privilege is concerned, on the very face of it, s.123 of the Evidence
Act, 1872 relates to unpublished public records - A claim of immunity
against disclosure under s.123 of the Evidence Act has to be
essentially adjudged on the touchstone of public interest and to
satisfy itself that public interest is not put to jeopardy by requiring
disclosure, the Court may even inspect the document in question
though the said power is to be sparingly exercised - Such an
exercise, however, was not necessary in the instant case as the
document(s) being in public domain and within the reach and
knowledge of the entire citizenry, a practical and common sense
approach lead to the obvious conclusion that it would be meaningless
and an exercise in utter futility for the Court to refrain from reading
and considering the said document or from shutting out its evidentiary
worth and value - Preliminary objection questioning maintainability
 [2019] 5 S.C.R. 638
638
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of review petitions is dismissed - The review petitions are to be
adjudicated on their own merit by taking into account the relevance
of the contents of the three documents appended to the review petition
- Evidence Act, 1872 - s.123 - Constitution of India - Art.19(2).(Per
Ranjan Gogoi, CJI)
Evidence Act, 1872: s.123 - Claim for privilege, waiver of -
Held: Claim for privilege under s.123 being based on public policy
cannot be waived - The basis for the claim of privilege is and can
only be public interest. (Per K.M. Joseph, J.)
Press: Freedom of expression - The right of the Press in India
is no higher than the right of the citizens under Art.19(1)(a) and is
traced to the same provision - If freedom is enjoyed by the Press
without a deep sense of responsibility, it can weaken democracy -
Constitution of India - Art.19(1)(a). (Per K.M. Joseph, J.)
Jurisprudence: Crown privilege - Law in India and in
England - Change introduced by the Right to Information Act, 2005
- Discussed - Under the law relating to privilege, there are two
classes of documents which ordinarily form the basis of privilege -
In the first category, the claim for privilege is raised on the basis of
contents of the particular documents - The second head under which
privilege is ordinarily claimed is in case of document which falls in
a class of documents which entitles it to protection from disclosure
and production - When a document falls in such a class, ordinarily
courts are not required to consider the contents - When privilege
was claimed as for instance in the matter relating to security of the
nation, traditionally, courts both in England and in India have held
that such documents would fall in the class of documents which
entitles it to protection from production - Under s.8(1)(a),
information, the disclosure of which will prejudicially affect the
sovereignty and integrity of India, the security and strategic
scientific or economic interests of the State, relation with foreign
State or information leading to incitement of an offence are ordinarily
exempt from the obligation of disclosure but even in respect of such
matters, Parliament has advanced the law in the form of s.8(2) by
giving recognition to the principle that

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[2019] 5 S.C.R.
YASHWANT SINHA & ORS.
v.
CENTRAL BUREAU OF INVESTIGATION THROUGH ITS
DIRECTOR & ANR.
(Review Petition (Criminal) No. 46 of 2019)
In
(Writ Petition (Criminal) No. 298 of 2018)
APRIL 10, 2019
[RANJAN GOGOI, CJI., SANJAY KISHAN KAUL AND
K. M. JOSEPH, JJ.]
Official Secrets Act, 1923: ss.3 and 5 - Review petition -
Preliminary objection raised by the respondent challenging the
maintainability of the review petition on the ground that the three
documents appended to the review petition and relied upon by the
review petitioners were unauthorisedly removed from the office of
the Ministry of Defence and and for the said reason, the review
petition was not maintainable as said act violated the provisions of
ss.3 and 5 of Official Secrets Act - The said three documents were
admittedly published in two newspapers on different dates - Held:
No law enacted by Parliament was brought to notice which
specifically barred or prohibited the publication of such documents
on any of the grounds mentioned in Art.19(2) - Insofar as the claim
of privilege is concerned, on the very face of it, s.123 of the Evidence
Act, 1872 relates to unpublished public records - A claim of immunity
against disclosure under s.123 of the Evidence Act has to be
essentially adjudged on the touchstone of public interest and to
satisfy itself that public interest is not put to jeopardy by requiring
disclosure, the Court may even inspect the document in question
though the said power is to be sparingly exercised - Such an
exercise, however, was not necessary in the instant case as the
document(s) being in public domain and within the reach and
knowledge of the entire citizenry, a practical and common sense
approach lead to the obvious conclusion that it would be meaningless
and an exercise in utter futility for the Court to refrain from reading
and considering the said document or from shutting out its evidentiary
worth and value - Preliminary objection questioning maintainability
 [2019] 5 S.C.R. 638
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of review petitions is dismissed - The review petitions are to be
adjudicated on their own merit by taking into account the relevance
of the contents of the three documents appended to the review petition
- Evidence Act, 1872 - s.123 - Constitution of India - Art.19(2).(Per
Ranjan Gogoi, CJI)
Evidence Act, 1872: s.123 - Claim for privilege, waiver of -
Held: Claim for privilege under s.123 being based on public policy
cannot be waived - The basis for the claim of privilege is and can
only be public interest. (Per K.M. Joseph, J.)
Press: Freedom of expression - The right of the Press in India
is no higher than the right of the citizens under Art.19(1)(a) and is
traced to the same provision - If freedom is enjoyed by the Press
without a deep sense of responsibility, it can weaken democracy -
Constitution of India - Art.19(1)(a). (Per K.M. Joseph, J.)
Jurisprudence: Crown privilege - Law in India and in
England - Change introduced by the Right to Information Act, 2005
- Discussed - Under the law relating to privilege, there are two
classes of documents which ordinarily form the basis of privilege -
In the first category, the claim for privilege is raised on the basis of
contents of the particular documents - The second head under which
privilege is ordinarily claimed is in case of document which falls in
a class of documents which entitles it to protection from disclosure
and production - When a document falls in such a class, ordinarily
courts are not required to consider the contents - When privilege
was claimed as for instance in the matter relating to security of the
nation, traditionally, courts both in England and in India have held
that such documents would fall in the class of documents which
entitles it to protection from production - Under s.8(1)(a),
information, the disclosure of which will prejudicially affect the
sovereignty and integrity of India, the security and strategic
scientific or economic interests of the State, relation with foreign
State or information leading to incitement of an offence are ordinarily
exempt from the obligation of disclosure but even in respect of such
matters, Parliament has advanced the law in the form of s.8(2) by
giving recognition to the principle that disclosure of information
could be refused only on the foundation of public interest being
jeopardised - In other words, access to information is allowed in
YASHWANT SINHA v. CBI THR. ITS DIRECTOR
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respect of matters falling even under s.8(1)(a), if case is made out
under s.8(2) - Thus, the RTI Act through s.8(2) has conferred upon
the citizens a priceless right by clothing them with the right to
demand information even in respect of such matters as security of
the country and matters relating to relation with foreign state - In
such case, the applicant has to establish that withholding of such
information produces greater harm than disclosing it - Right to
Information Act, 2005 - ss.8(1)(a), 8(2). (Per K.M. Joseph, J.)
Dismissing the preliminary objections with regard to the
maintainability of the review petitions, the Court
HELD : PER RANJAN GOGOI, CJI. (For himself and
Sanjay Kishan Kaul, J.)
1. There is no provision in the Official Secrets Act and no
such provision in any other statute has been brought to notice
by which Parliament has vested any power in the executive arm
of the government either to restrain publication of documents
marked as secret or from placing such documents before a Court
of Law which may have been called upon to adjudicate a legal
issue concerning the parties. [Para 5][654-C]
2. Insofar as the claim of privilege is concerned, on the
very face of it, Section 123 of the Indian Evidence Act, 1872
relates to unpublished public records. The three documents have
been published in different editions of 'The Hindu' newspaper.
That apart, a claim of immunity against disclosure under Section
123 of the Indian Evidence Act has to be essentially adjudged on
the touchstone of public interest and to satisfy itself that public
interest is not put to jeopardy by requiring disclosure the Court
may even inspect the document in question though the said power
has to be sparingly exercised. Such an exercise, however, would
not be necessary in the instant case as the document(s) being in
public domain and within the reach and knowledge of the entire
citizenry, a practical and common sense approach would lead to
the obvious conclusion that it would be a meaningless and an
exercise in utter futility for the Court to refrain from reading and
considering the said document or from shutting out its evidentiary
worth and value. [Para 6][654-D-F]
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3. Section 8(2) of the Right to Information Act, 2005
contemplates that notwithstanding anything in the Official Secrets
Act and the exemptions permissible under sub-section (1) of
Section 8, a public authority would be justified in allowing access
to information, if on proper balancing, public interest in disclosure
outweighs the harm sought to be protected. When the documents
in question are already in the public domain, how the protection
under Section 8(1)(a) of the Act would serve public interest. The
review petitions will have to be adjudicated on their own merit
by taking into account the relevance of the contents of the three
documents, admissibility of which, in the judicial decision making
process, has been sought to be questioned by the respondents
in the review petitions. [Paras 9, 12][655-F-G; 666-G]
Kesavananda Bharati Sripadagalvaru v. State of Kerala
AIR 1973 SC 1461 : [1973] 0 Suppl. SCR 1 - followed
Romesh Thappar v. State of Madras AIR 1950 SC
124 : [1950] SCR 594 ; Brij Bhushan v. The State of
Delhi AIR 1950 SC 129 : [1950] SCR 605 ; Indian
Express Newspapers (Bombay) Private Limited v. Union
of India 1985 (1) SCC 641 : [1985] 2 SCR 287 ;
Printers (Mysore) Limited v. Assistant Commercial Tax
Officer 1994 (2) SCC 434 : [1994] 1 SCR 682 ; S.P.
Gupta v. Union of India AIR 1982 SC 149 : [1982]
SCR 365 ; Pooran Mal v. Director of Inspection
(Investigation) of Income-Tax, New Delhi AIR 1974 SC
348 : [1974] 2 SCR 704 ; Chief Information
Commissioner v. State of Manipur (2011) 15 SCC 1 :
[2011] 13 SCR 505 - relied on
New York Times Company v. United States 403 U.S. 713
(1971) - referred to
PER K.M. JOSEPH, J. (Concurring)
1. Law in India relating to Crown privilege as it was
originally styled in England is mainly embedded in a statutory
provision namely Section 123 of the Indian Evidence Act. Also
Section 124 of the said Act is relied upon in the affidavit of the
Secretary. There can be no matter of doubt that Section 124 is
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confined to public officers and the decisive aspect even under
Section 124 is the protection of public interest. Section 162 deals
with the aspect of inspection of documents covered by privilege.
In England, the law relating to privilege has been entirely court
made. The claim for privilege under Section 123 of the Indian
Evidence Act being based on public policy cannot be waived. The
basis for the claim of privilege is and can only be public
interest.[Paras 7, 8][660-C-F]
S.P. Gupta v. Union of India 1981 (Suppl) SCC 87 :
[1982] SCR 365 ; M/s. Doypack Systems Pvt. Ltd. v.
Union of India and Others 1988 (2) SCC 299 : [1988]
2 SCR 962 - relied on
Rajendra Sail v. M.P. High Court Br Association and
Others 2005 (6) SCC 109 : [2005] 3 SCR 816 ; Indian
Express Newspapers (Bombay) Private Ltd. And Others
v. Union of India 1985 (1) SCC 641 : [1985] 2 SCR
287 - referred to
2.1 In no unambiguous terms, Parliament has declared that
the Official Secrets Act, a law made in the year 1923 and for that
matter any other law for the time being in force inter alia
notwithstanding the provisions of the RTI Act will hold the field.
The first proviso to Section 24 indeed marks a paradigm shift, in
the perspective of the body polity through its elected
representatives that corruption and human rights violations are
completely incompatible and hence anathema to the very basic
principles of democracy, the rule of law and constitutional morality.
The proviso declares that even though information available with
intelligence and security organisations are generally outside the
purview of the open disclosure regime contemplated under the
Act, if the information pertains to allegations of corruption or
human rights violations such information is very much available
to be sought for under the Act. [Para 18][668-B-D]
2.2 Parliament has indeed intended to strengthen
democracy and has sought to introduce the highest levels of
transparency and openness. With the passing of the Right to
Information Act, the citizens fundamental right of expression
under Article 19(1)(a) of the Constitution of India, which itself
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has been recognised as encompassing, a basket of rights has
been given fruitful meaning. Section 8(2) of the Act manifests a
legal revolution that has been introduced in that, none of the
exemptions declared under sub-section(1) of Section 8 or the
Official Secrets Act, 1923 can stand in the way of the access to
information if the public interest in disclosure overshadows, the
harm to the protected interests. [Para 19][668-E-G]
2.3 It is true that under Section 8(1)(a), information the
disclosure of which will prejudicially affect the sovereignty and
integrity of India, the security and strategic security and strategic
scientific or economic interests of the State, relation with foreign
State or information leading to incitement of an offence are
ordinarily exempt from the obligation of disclosure but even in
respect of such matters Parliament has advanced the law in a
manner which can only be described as dramatic by giving
recognition to the principle that disclosure of information could
be refused only on the foundation of public interest being
jeopardised. Under the law relating to privilege there are two
classes of documents which ordinarily form the basis of privilege.
In the first category, the claim for privilege is raised on the basis
of contents of the particular documents. The second head under
which privilege is ordinarily claimed is that the document is a
document which falls in a class of documents which entitles it to
protection from disclosure and production. When a document
falls in such a class, ordinarily courts are told that it suffices and
the court may not consider the contents. When privilege was
claimed as for instance in the matter relating to security of the
nation, traditionally, courts both in England and in India have held
that such documents would fall in the class of documents which
entitles it to protection from production. The RTI Act through
Section 8(2) has conferred upon the citizens a priceless right by
clothing them with the right to demand information even in respect
of such matters as security of the country and matters relating to
relation with foreign state. No doubt, information is not be given
for the mere asking. The applicant must establish that withholding
of such information produces greater harm than disclosing it.
[Para 20][668-H; 669-A-B; E-H]
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3.1 An officer of the department is permitted under the
RTI Act to allow access to information under the Act in respect
of matters falling even under Section 8(1)(a) if a case is made out
under Section 8(2). If an officer does not accede to the request,
a citizen can pursue remedies before higher authorities and finally
the courts. In this case in fact, the documents in respect of which
the privilege is claimed are already on record. Section 123 of the
Evidence Act in fact contemplates a situation where party seeks
the production of document which is with a public authority and
the public authority raises claim for privilege by contending that
the document cannot be produced by it. Undoubtedly, the
foundation for such a claim is based on public interest. Under the
common law both in England and in India the context for material
being considered by the court is relevancy. There can be no
dispute that the manner in which evidence is got namely that it
was procured in an illegal manner would not ordinarily be very
significant in itself in regard to the courts decision to act upon
the same. [Paras 24, 25, 26][670-H; 671-A-C; F-G]
Pooran Mal v. Director of Inspection (Investigation) of
Income-Tax, New Delhi AIR 1974 SC 348 : [1974] 2
SCR 704 ; State of U.P. v. Raj Narain AIR 1975 SC
865 : [1975] 3 SCR 333 - relied on
3.2 The documents in question were published in 'The
Hindu', a national daily. It is true that they have not been officially
published. The correctness of the contents per se of the
documents were not questioned. Lastly, the case does not strictly
involve in a sense the claim for privilege as the petitioners have
not called upon the respondents to produce the original and the
State does not take objection to the correctness of the contents
of the documents. The request of the respondents is to remove
the documents from the record. In regard to documents which
are improperly obtained and which are subject to a claim for
privilege, undoubtedly the ordinary rule of relevancy alone may
not suffice as larger public interest may warrant in a given case
refusing to legitimise what is forbidden on grounds of overriding
public interest. [Paras 27, 31][678-B-D]
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Time v. Hill 385 US 374 ; Dennis v. United States 341
US 494 ; Sankey v. Whitlam (1978) 142 CLR 1 ; Rogers
v. Home Secretary 1973 A.C. 388 - referred to
Case law reference
PER RANJAN GOGOI, CJI.
[1950] SCR 594
relied on
Para 4
[1950] SCR 605
relied on
Para 4
[1985] 2 SCR 287
relied on
Para 4
[1994] 1 SCR 682
relied on
Para 4
[1982] SCR 365
relied on
Para 6
[1974] 2 SCR 704
relied on
Para 7
[2011] 13 SCR 505
relied on
Para 8
[1973] 0 Suppl. SCR 1
followed
Para 11
PER K.M. JOSEPH, J.
[2005] 3 SCR 816
referred to
Para 2
[1985] 2 SCR 287
referred to
Para 5
[1975] 3 SCR 333
referred to
Para 9
[1982] SCR 365
relied on
Para 10
[1988] 2 SCR 962
relied on
Para 10
[1975] 3 SCR 333
relied on
Para 25
[1974] 2 SCR 704
relied on
Para 26
CRIMINAL ORIGINAL JURISDICTION : Review Petition
(Criminal) No. 46 of 2019 in Writ Petition (Criminal) No. 298 of 2018.
Under Article 32 of the Constitution of India
With
M.A. No. 58/2019 in W.P.(Crl.) No. 225/2018, R.P.(Crl.)
No. 122/2019 in W.P.(Crl.) No. 297/2018, M.A. No. 403/2019 in
W.P.(Crl.) No. 298/2018, R.P.(C) No. 719/2019 in W.P.(C) No. 1205/
2018.
YASHWANT SINHA v. CBI THR. ITS DIRECTOR
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K. K. Venugopal, AG, Tushar Mehta, SG, Vikas Singh, Sr. Adv.,
Dheeraj Kumar Singh, Alok Shukla, Hardik Luthra, Mrinal Kumar, Rushi
Khan, Ms. Suman, Ms. Deepeika Kalia, Kapish Seth, Ms. Srishti
Bannerjee, Ashutosh Garg, Ms. Shraddha Deshmukh, R.
Balasubramanian, Arvind Kumar Sharma, Advs. for the appearing parties.
Prashant Bhushan, Arun Shourie, Yashwant Sinha, Manohar Lal
Sharma, Petitioners-in-person.
The following Judgment and Order of the Court were delivered :
JUDGMENT
RANJAN GOGOI, CJI
1. A preliminary objection with regard to the maintainability of the
review petition has been raised by the Attorney General on behalf of the
respondents. The learned Attorney General contends that the review
petition lacks in bona fides inasmuch as three documents unauthorizedly
removed from the office of the Ministry of Defence, Government of
India, have been appended to the review petition and relied upon by the
review petitioners. The three documents in question are:
(a)
An eight-page note written by three members of the Indian
Negotiating Team ('INT') charged in reference to the
Rafale Deal (note dated 01.06.2016)
(b)
Note-18 of the Ministry of Defence (Government of India),
F.No. AirHQ/S/96380/3/ASR PC-XXVI (Marked Secret
under the Official Secrets Act)
(c)
Note-10 written by S.K. Sharma (Deputy Secretary, MoD,
Air-III), Note dated 24.11.2015 (Marked Secret under the
Official Secrets Act)
2. It is contented that the alleged unauthorized removal of the
documents from the custody of the competent authority of the Government
of India and the use thereof to support the pleas urged in the review
petition is in violation of the provisions of Sections 3 and 5 of the Official
Secrets Act, 1923. It is further contended that the documents cannot be
accessed under the Right to Information Act in view of the provisions
contained in Section 8(1)(a) of the said Act. Additionally, the provisions
contained in Section 123 of the Indian Evidence Act, 1872 have been
pressed into service and privilege has been claimed so as to bar their
disclosure in the public domain. Section 3, 5(1) of the Official Secrets
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Act; Section 8(1)(a) and 8(2) of the Right to Information Act and Section
123 of the Evidence Act on which the learned Attorney has relied upon
is extracted below.
3. Penalties for spying.- (1) If any person for any purpose
prejudicial to the safety or interests of the State -
(a) approaches, inspects, passes over or is in the vicinity of, or
enters, any prohibited place; or
(b) makes any sketch, plan, model or note which is calculated to
be or might be or is intended to be directly or indirectly, useful
to any enemy; or
(c) obtains, collects, records or publishes or communicates to
any other person any secret official code or password, or
any sketch, plan, model, article or note or other document or
information which is calculated to be or might be or is intended
to be, directly or indirectly, useful to an enemy or which relates
to a matter the disclosure of which is likely to affect the
sovereignty and integrity of India, the security of the State or
friendly relations with foreign States:
he shall be punishable with imprisonment for a term which may
extend, where the offence is committed in relation to any work of
defence, arsenal, naval, military or air force establishment or station,
mine, minefield, factory, dockyard, camp, ship or aircraft or
otherwise in relation to the naval, military or air force affairs of
Government or in relation to any secret official code, to fourteen
years and in other cases to three years.
(2) On a prosecution for an offence punishable under this section
it shall not be necessary to show that the accused person was
guilty of any particular act tending to show a purpose prejudicial
to the safety or interests of the State, and, notwithstanding that no
such act is proved against him, he may be convicted if, from the
circumstances of the case or his conduct or his known character
as proved, it appears that his purpose was a purpose prejudicial to
the safety or interests of the State; and if any sketch, plan, model,
article, note, document, or information relating to or used in any
prohibited place, or relating to anything in such a place, or any
secret official code or password is made, obtained, collected,
YASHWANT SINHA v. CBI THR. ITS DIRECTOR
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recorded, published or communicated by any person other than a
person acting under lawful authority, and from the circumstances
of the case or his conduct or his known character as proved it
appears that his purpose was a purpose prejudicial to the safety
or interests of the State, such sketch, plan, model, article, note,
document, information, code or password shall be presumed to
have been made, obtained, collected, recorded, published or
communicated for a purpose prejudicial to the safety or interests
of the State.
5. Wrongful communication, etc., of information.-(1) If any
person having in his possession or control any secret official code
or password or any sketch, plan, model, article, note, document or
information which relates to or is used in a prohibited place or
relates to anything in such a place, or which is likely to assist,
directly or indirectly, an enemy or which relates to a matter the
disclosure of which is likely to affect the sovereignty and integrity
of India, the security of the State or friendly relations with foreign
States or which has been made or obtained in contravention of
this Act, or which has been entrusted in confidence to him by any
person holding office under Government, or which he has obtained
or to which he has had access owing to his position as a person
who holds or has held a contract made on behalf of Government,
or as a person who is or has been employed under a person who
holds or has held such an office or contract-
(a) willfully communicates the code or password, sketch, plan,
model, article, note, document or information to any person
other than a person to whom he is authorized to communicate
it, or a Court of Justice or a person to whom it is, in the
interests of the State, his duty to communicate it; or
(b) uses the information in his possession for the benefit of any
foreign power or in any other manner prejudicial to the safety
of the State; or
(c) retains the sketch, plan, model, article, note or document in
his possession or control when he has no right to retain it, or
when it is contrary to his duty to retain it, or willfully fails to
comply with all directions issued by lawful authority with regard
to the return or disposal thereof; or
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(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of the sketch, plan, model, article, note,
document, secret official code or password or information;
He shall be guilty of an offence under this section.
(2) xxxx xxxx xxxx xxxx
(3) xxxx xxxx xxxx xxxx
8. Exemption from disclosure of information. - (1)
Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen, -
(a) information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence;
(b) xxxx xxxx xxxx xxxx
(c) xxxx xxxx xxxx xxxx
(d) xxxx xxxx xxxx xxxx
(e) xxxx xxxx xxxx xxxx
(f) xxxx xxxx xxxx xxxx
(g) xxxx xxxx xxxx xxxx
(h) xxxx xxxx xxxx xxxx
(i) xxxx xxxx xxxx xxxx
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923
(19 of 1923) nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may allow
access to information, if public interest in disclosure outweighs
the harm to the protected interests.
(3) xxxx xxxx xxxx xxxx
Provided that where any question arises as to the date from
which the said period of twenty years has to be computed,
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the decision of the Central Government shall be final, subject
to the usual appeals provided for in this Act.
123. Evidence as to affairs of State.- No one shall be permitted
to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit.
3. The three documents which are the subject matter of the present
controversy, admittedly, was published in 'The Hindu' newspaper on
different dates in the month of February, 2019. One of the documents
i.e. Note-18 of the Ministry of Defence was also published in 'The Wire'
a member of the Digital Print Media.
4. The fact that the three documents had been published in the
Hindu and were thus available in the public domain has not been seriously
disputed or contested by the respondents. No question has been raised
and, in our considered opinion, very rightly, with regard to the publication
of the documents in 'The Hindu' newspaper. The right of such
publication would seem to be in consonance with the constitutional
guarantee of freedom of speech. No law enacted by Parliament
specifically barring or prohibiting the publication of such documents on
any of the grounds mentioned in Article 19(2) of the Constitution has
been brought to our notice. In fact, the publication of the said documents
in 'The Hindu' newspaper reminds the Court of the consistent views of
this Court upholding the freedom of the press in a long line of decisions
commencing from Romesh Thappar vs. State of Madras1 and Brij
Bhushan vs. The State of Delhi2. Though not in issue, the present
could very well be an appropriate occasion to recall the views expressed
by this Court from time to time. Illustratively and only because of its
comprehensiveness the following observations in Indian Express
Newspapers (Bombay) Private Limited vs.Union of India3 may be
extracted:
"The freedom of press, as one of the members of the Constituent
Assembly said, is one of the items around which the greatest and
the bitterest of constitutional struggles have been waged in all
countries where liberal constitutions prevail. The said freedom is
1AIR 1950 SC 124
2AIR 1950 SC 129
31985(1) SCC 641
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attained at considerable sacrifice and suffering and ultimately it
has come to be incorporated in the various written constitutions.
James Madison when he offered the Bill of Rights to the Congress
in 1789 is reported as having said: "The right of freedom of speech
is secured, the liberty of the press is expressly declared to be
beyond the reach of this Government" (See, 1 Annals of Congress
(1789-96) p. 141). Even where there are no written constitutions,
there are well established constitutional conventions or judicial
pronouncements securing the said freedom for the people. The
basic documents of the United Nations and of some other
international bodies to which reference will be made hereafter
give prominence to the said right.
The leaders of the Indian independence movement attached special
significance to the freedom of speech and expression which
included freedom of press apart from other freedoms. During
their struggle for freedom, they were moved by the American Bill
of Rights containing the First Amendment to the Constitution of
the United States of America which guaranteed the freedom of
the press. Pandit Jawaharlal Nehru in his historic resolution
containing the aims and objects of the Constitution to be enacted
by the Constituent Assembly said that the Constitution should
guarantee and secure to all the people of India among others
freedom of thought and expression. He also stated elsewhere
that "I would rather have a completely free press with all the
dangers involved in the wrong use of that freedom than a
suppressed or regulated press" [See, D. R Mankekar: The Press
under Pressure (1973) p. 25]. The Constituent Assembly and its
various committees and sub-committees considered freedom of
speech and expression which included freedom of press also as a
precious right. The Preamble to the Constitution says that it is
intended to secure to all citizens among others liberty of thought
expression, and belief. In Romesh Thappar v. State of Madras4
and Brij Bhushan v. The State of Delhi5, this Court firmly expressed
its view that there could not be any kind of restriction on the
freedom of speech and expression other than those mentioned in
Article 19(2) and thereby made it clear that there could not be
any interference with that freedom in the name of public interest.
4AIR 1950 SC 124
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Even when clause (2) of Article 19 was subsequently substituted
under the Constitution (First Amendment) Act, 1951, by a new
clause which permitted the imposition of reasonable restrictions
on the freedom of speech and expression in the interests of
sovereignty and integrity of India the security of the State, friendly
relations with foreign States, public order, decency or morality in
relation to contempt of Court defamation or incitement to an
offence, Parliament did not choose to include a clause enabling
the imposition of reasonable restrictions in the, public interest."
A later view equally eloquent expressed by this Court in Printers
(Mysore) Limited vs. Assistant Commercial Tax Officer6 may also
be usefully recapitulated.
"Freedom of press has always been a cherished right in all
democratic countries. The newspapers not only purvey news but
also ideas, opinions and ideologies besides much else. They are
supposed to guard public interest by bringing to fore the misdeeds,
failings and lapses of the government and other bodies exercising
governing power. Rightly, therefore, it has been described as the
Fourth Estate. The democratic credentials of a State is judged
today by the extent of freedom the press enjoys in that State.
According to Justice Douglas (An Almanac of Liberty)
"acceptance by government of a dissident press is a measure of
the maturity of the nation". The learned Judge observed in
Terminiello v. Chicago, (1949) 93 L.Edn. 1131., that "a function
of free speech under our system of government is to invite dispute.
It may indeed best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and
have profound unsettling effect as it presses for acceptance of an
idea. ...There is no room under our Constitution for a more
restrictive view. For the alternative would lead to standardisation
of ideas either by legislatures, courts, "or dominant political or
community ground". The said observations were of course made
with reference to the First Amendment to the U.S. Constitution
which expressly guarantees freedom of press but they are no less
61994 (2) SCC 434
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relevant in the India context; subject, of course, to clause (2) of
Article 19 of our Constitution. We may be pardoned for quoting
another passage from Hughese, C.J., in De Jonge v. State of
Oregon, (1937) 299 U.S. 353, to emphasise the fundamental
significance of free speech. The learned Chief Justice said: "the
greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and
violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, ferrets and free assembly in
order to maintain the opportunity for free political discussion, to
the end that Government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation
of constitutional government."
It is true that very often the press, whether out of commercial
reason or excessive competition, descends to undesirable levels
and may cause positive public mischief but the difficulty lies in the
fact, recognised by Thomas Jefferson, that this freedom "cannot
be limited without being lost". Thomas Jefferson said, "it is,
however, an evil for which there is no remedy; our liberty depends
on the freedom of the press and that cannot be limited without
being lost". (In a letter to Dr. J. Currie, 1786). It is evident that
"an able, disinterested, public-spirited press, with trained
intelligence to know the right and courage to do it, can preserve
that public virtue without which popular government is a sham
and a mockery. A cynical, mercenary, demagogic press will
produce in time a people as base as itself. The power to mould
the future of the Republic will be in the hands of the journalism of
future generations", as stated by Joseph Pulitzer."
5. The above views of the Supreme Court of India on the issue of
the freedom of the press has been echoed by the U.S. Supreme Court in
New York Times Company vs. United States7 wherein Marshall, J.
refused to recognize a right in the executive government to seek a restraint
order or publication of certain papers titled "Pentagon Papers" primarily
on the ground that the first Amendment guaranteed freedom of the press
and 18 U.S. Code § 793 did not contemplate any restriction on publication
7403 U.S. 713 (1971)
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of items or materials specified in the said Code. By a majority of 6:3 the
U.S. Supreme Court declined to pass prohibitory orders on publication
of the "Pentagon Papers" on the ground that the Congress itself not
having vested any such power in the executive, which it could have so
done, the courts cannot carve out such a jurisdiction as the same may
amount to unauthorized judicial law making thereby violating the sacred
doctrine of separation of powers. We do not see how and why the
above principle of law will not apply to the facts of the present case.
There is no provision in the Official Secrets Act and no such provision in
any other statute has been brought to our notice by which Parliament
has vested any power in the executive arm of the government either to
restrain publication of documents marked as secret or from placing such
documents before a Court of Law which may have been called upon to
adjudicate a legal issue concerning the parties.
6. Insofar as the claim of privilege is concerned, on the very face
of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished
public records. As already noticed, the three documents have been
published in different editions of 'The Hindu' newspaper. That apart, as
held in S.P. Gupta vs. Union of India8 a claim of immunity against
disclosure under Section 123 of the Indian Evidence Act has to be
essentially adjudged on the touchstone of public interest and to satisfy
itself that public interest is not put to jeopardy by requiring disclosure the
Court may even inspect the document in question though the said power
has to be sparingly exercised. Such an exercise, however, would not be
necessary in the present case as the document(s) being in public domain
and within the reach and knowledge of the entire citizenry, a practical
and common sense approach would lead to the obvious conclusion that
it would be a meaningless and an exercise in utter futility for the Court to
refrain from reading and considering the said document or from shutting
out its evidentiary worth and value. As the claim of immunity under
Section 123 of the Indian Evidence Act is plainly not tenable, we do not
consider it necessary to delve into the matter any further.
7. An issue has been raised by the learned Attorney with regard
to the manner in which the three documents in question had been procured
and placed before the Court. In this regard, as already noticed, the
documents have been published in 'The Hindu' newspaper on different
8AIR 1982 SC, 149
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dates. That apart, even assuming that the documents have not been
procured in a proper manner should the same be shut out of consideration
by the Court? In Pooran Mal vs. Director of Inspection (Investigation)
of Income-Tax, New Delhi9 this Court has taken the view that the
"test of admissibility of evidence lies in its relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or other
law evidence obtained as a result of illegal search or seizure is not liable
to be shut out."
8. Insofar as the Right to Information Act is concerned in Chief
Information Commissioner vs. State of Manipur10 this Court had
occasion to observe the object and purpose behind the enactment of the
Act in the following terms:
 "The preamble (of the Right to Information Act, 2005) would
obviously show that the Act is based on the concept of an open
society. As its preamble shows, the Act was enacted to promote
transparency and accountability in the working of every public
authority in order to strengthen the core constitutional values of a
democratic republic. It is clear that the Parliament enacted the
said Act keeping in mind the rights of an informed citizenry in
which transparency of information is vital in curbing corruption
and making the Government and its instrumentalities accountable.
The Act is meant to harmonise the conflicting interests of
Government to preserve the confidentiality of sensitive information
with the right of citizens to know the functioning of the
governmental process in such a way as to preserve the
paramountcy of the democratic ideal."
9. Section 8(2) of the Right to Information Act (already extracted)
contemplates that notwithstanding anything in the Official Secrets Act
and the exemptions permissible under sub-section (1) of Section 8, a
public authority would be justified in allowing access to information, if on
proper balancing, public interest in disclosure outweighs the harm sought
to be protected. When the documents in question are already in the
public domain, we do not see how the protection under Section 8(1)(a)
of the Act would serve public interest.
9AIR 1974 SC 348
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10. An omnibus statement has been made by the learned Attorney
that there are certain State actions that are outside the purview of judicial
review and which lie within the political domain. The present would be
such a case. In the final leg of the arguments, the learned Attorney
General states that this case, if kept alive, has the potential to threaten
the security of each and every citizen residing within our territories.