#Rafale The Hindu’s right to publish documents is in consonance with constitutional guarantee of freedom of speech, says Supreme Court

[dropcap]A[/dropcap] three-judge bench of the Supreme Court, comprising CJI Ranjan Gogoi, Justices Sanjay Kishan Kaul and Justice K M Joseph today unanimously ruled that there was no embargo to the admissibility of   ‘secret’ documents, containing file notes of the Defence Ministry, that had been annexed to the review petition that was filed in the case relating to the purchase of the Rafale aircraft.

The following three documents were published by the The Hindu newspaper, which were sought to be relied on by the petitioners: 

  • An eight­page   note   written   by   three   members   of the Indian Negotiating Team (‘INT’) charged in reference to the Rafale Deal (note dated June 1, 2016)
  • Note­8 of the Ministry of Defence (Government of India), F.No. AirHQ/S/96380/3/ASR PC­XXVI (Marked Secret under the Official Secrets Act)
  • Note­10 written by S.K. Sharma (Deputy Secretary, MoD, Air­III), Note dated November 25, 2015 (Marked “Secret” under the Official Secrets Act)

Appearing for the Centre, Attorney General for India K K Venugopal had submitted that these documents were unauthorisedly removed from the office of the Ministry of  Defence and therefore could not be relied upon by the petitioners. He had further contended that unauthorised removal of the documents from the custody of the Government of India and their use to support the pleas, urged in the review petition, was in violation of the provisions of Sections 3 and 5 of the Official Secrets Act, 1923. He further contended that the documents could not be accessed under the Right to Information Act (the RTI Act) in view of the provisions contained in Section 8(1)(a) of the RTI Act. Additionally, the provisions contained in Section 123 of the Indian Evidence Act, 1872 were  relied upon by the Centre to claim privilege in order to bar their disclosure in the public domain.


Touchstone of public interest


Rejecting the contentions of the Central Government, the Supreme Court, speaking through the Chief Justice of India Ranjan Gogoi, who authored the judgment for himself and Justice Sanjay Kishan Kaul said “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”.  

On the issue of claim of privilege by the Union government, the Court pointed out that  Section  123   of   the   Indian   Evidence   Act,   1872   related   to unpublished  public   records.  In the present case, it observed, the three documents had already been published in different editions of ‘The Hindu’.

Referring to the judgment,   S.P. Gupta vs. Union of India, the court said a claim of immunity against disclosure under Section 123 of the Indian   Evidence   Act   had   to   be   essentially   adjudged   on   the touchstone of public interest and to satisfy itself that public interest was not jeopardised by requiring disclosure, the Court could even seek to inspect  the document in question though this power had 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”, the Chief Justice Gogoi said.


Press has a right to publish documents


The CJI, in his judgment, noted that 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,” he said.



In fact, the publication of the documents in ‘The Hindu’ newspaper, Justice Gogoi said,  reminded the court of the consistent views of the Supreme Court in upholding the freedom of the press in a long line of decisions commencing from Romesh Thapar vs. State of Madras and Brij Bhushan vs. The State of Delhi.

We deem it proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that 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, CJI Ranjan Gogoi declared.


Justice Joseph’s concurring judgment


In his separate judgment but concurring with the Chief Justice of India, Justice K M Joseph spoke of the contribution made by the press in strengthening democracy in the country. “It will have a pivotal role to play for the continued existence of a vibrant democracy in the country. It is indisputable that the press out of which the visual media in particular wields power, the reach of which appears to be limitless. No segment of the population is impervious to its influence,” he said.

“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”, said Justice Joseph.



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 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, Justice Joseph held.

On the issue of claim of privilege by the Union government, Justice K M Joseph noted that   the documents in respect of which the privilege was claimed were already on record. “Section 123 of the Evidence Act in fact contemplates a situation where a party seeks the production of document which is with a public authority and the public authority raises a 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 and nothing more and nothing less,” he said.

Justice Joseph said there was no dispute that the manner in which evidence was obtained – that it was procured in an illegal manner  – would not ordinarily be very significant in itself in regard to the court’s decision to act upon it.



Read the Judgment



The Leaflet