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#Rafale- Official Secrets Act Does Not Empower Executive To Restrain Publication Of Documents Marked As Secret: SC [Read Judgment]

Ashok Kini
10 April 2019 11:17 AM GMT
#Rafale- Official Secrets Act Does Not Empower Executive To Restrain Publication Of Documents Marked As Secret: SC [Read Judgment]

"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."

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The Supreme Court has dismissed Centre's preliminary objection against using privileged documents for considering the review petitions in the Rafale case.

The Chief Justice of India Ranjan Gogoi penned the lead judgment (also on behalf of Justice Sanjay Kishan Kaul). Justice KM Joseph has also written a detailed judgment concurring with the views of CJI.

While dismissing the Centre's preliminary objections, the CJI observed that there is no provision in the Official Secrets Act 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. No such provision in any other statute has been brought to our notice, the CJI said.

Following are some other relevant observations made by CJI in his judgment.

Publication Seems To Be In Consonance With Constitutional Guarantee Of Freedom Of Speech

"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."

Section 123 Evidence Acts Relates To Unpublished Records

"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 India 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."

Can Not Be Shut Out Of Consideration

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 Delhi 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."

RTI vs. Official Secrets Act

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.

Quotes Justice Khanna in Response to AG's Security Threat Argument

The CJI also dealt with the Attorney General's contention that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. AG had also submitted that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. In response, the bench quoted Justice HR Khanna's observations in Kesavananda Bharati case.

"That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision."

Read Judgment


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