Case Note & Summary
The Supreme Court of India heard a preliminary objection regarding the maintainability of a review petition filed by Yashwant Sinha and others in connection with the Rafale deal. The Attorney General for India argued that the review petition lacked bona fides because the petitioners had appended three documents that were allegedly unauthorizedly removed from the Ministry of Defence, Government of India. These documents were marked secret under the Official Secrets Act, 1923, and included an eight-page note by the Indian Negotiating Team, Note18 of the Ministry of Defence, and Note10 by Deputy Secretary S.K. Sharma. The respondents contended that the use of these documents violated Sections 3 and 5 of the Official Secrets Act, could not be accessed under the Right to Information Act due to Section 8(1)(a), and were protected by privilege under Section 123 of the Indian Evidence Act, 1872. The petitioners did not seriously dispute that the documents had been published in 'The Hindu' newspaper in February 2019, and one document also appeared in 'The Wire'. The court noted that no question was raised regarding the publication itself, which might be protected under the constitutional guarantee of freedom of speech and expression under Article 19(1)(a). However, the court did not decide on the publication issue as it was not directly in question. The court recalled the importance of press freedom, citing Romesh Thappar v. State of Madras, Brij Bhushan v. State of Delhi, and Indian Express Newspapers v. Union of India. Ultimately, the court upheld the preliminary objection and dismissed the review petition as not maintainable due to the reliance on documents that were unauthorizedly removed from government custody and claimed to be privileged.
Headnote
A) Criminal Procedure - Review Petition - Maintainability - Reliance on Unauthorizedly Removed Secret Documents - Review petition dismissed as lacking bona fides where petitioners appended documents allegedly removed from Ministry of Defence without authority, marked secret under Official Secrets Act, 1923 - Court held that such documents cannot be used to support pleas in review petition (Paras 1-2). B) Evidence Law - Privilege - Affairs of State - Section 123, Indian Evidence Act, 1872 - Documents marked secret under Official Secrets Act, 1923 - Government claimed privilege to bar disclosure - Court noted that publication in newspaper does not automatically confer right to use in judicial proceedings without lawful authority (Paras 2-4). C) Constitutional Law - Freedom of Press - Article 19(1)(a) - Publication of Secret Documents - Publication of documents in 'The Hindu' newspaper was not challenged by respondents - Court observed that such publication may be in consonance with freedom of speech, but did not decide on the issue as it was not directly raised (Paras 4, 8-9).
Issue of Consideration
Whether the review petition is maintainable when it relies on documents allegedly unauthorizedly removed from government custody and marked secret under the Official Secrets Act, and whether such documents can be used in judicial proceedings despite claims of privilege under Section 123 of the Indian Evidence Act.
Final Decision
The Supreme Court upheld the preliminary objection and dismissed the review petition as not maintainable, without deciding on the merits of the review or the publication issue.
Law Points
- Maintainability of review petition
- Unauthorized removal of secret documents
- Official Secrets Act
- Right to Information Act
- Indian Evidence Act
- Freedom of press
- Public interest disclosure
