Case Note & Summary
The Supreme Court dealt with a preliminary objection regarding the maintainability of a review petition filed by Yashwant Sinha and others in connection with the Rafale deal. The respondents, represented by the Attorney General, argued that the review petition lacked bona fides because it relied on three documents that were unauthorizedly removed from the Ministry of Defence, Government of India. These documents were marked secret under the Official Secrets Act, 1923. The documents included an eight-page note by the Indian Negotiating Team dated 01.06.2016, Note18 of the Ministry of Defence, and Note10 by Deputy Secretary S.K. Sharma dated 24.11.2015. The respondents contended that the use of these documents violated Sections 3 and 5 of the Official Secrets Act, and that they could not be accessed under the Right to Information Act due to Section 8(1)(a) exemption. Additionally, privilege was claimed under Section 123 of the Indian Evidence Act, 1872. The court noted that the documents had been published in 'The Hindu' newspaper in February 2019, and one was also published in 'The Wire'. The respondents did not seriously dispute the publication. The court observed that the publication appeared to be in consonance with the constitutional guarantee of freedom of speech under Article 19(1)(a), and no law barring such publication under Article 19(2) was brought to its notice. The court recalled the consistent views upholding press freedom, citing Romesh Thappar v. State of Madras, Brij Bhushan v. State of Delhi, and Indian Express Newspapers v. Union of India. However, the court did not decide on the merits of the review petition or the validity of the documents; it only considered the preliminary objection. The judgment does not provide the final decision on the review petition's maintainability, as the text ends before the conclusion.
Headnote
A) Criminal Procedure - Review Petition - Maintainability - Documents Unauthorizedly Removed - Official Secrets Act, 1923, Sections 3 and 5 - The review petition was challenged on the ground that it relied on three documents unauthorizedly removed from the Ministry of Defence, which were marked secret under the Official Secrets Act. The court considered the preliminary objection regarding maintainability. (Paras 1-2) B) Evidence - Privilege - Affairs of State - Indian Evidence Act, 1872, Section 123 - The respondents claimed privilege under Section 123 of the Evidence Act to bar disclosure of the documents in public domain. The court noted that the documents had already been published in newspapers. (Paras 2-3) C) Constitutional Law - Freedom of Press - Article 19(1)(a) - Publication of Secret Documents - The court observed that the publication of the documents in 'The Hindu' newspaper was in consonance with freedom of speech, and no law barring such publication under Article 19(2) was brought to notice. (Paras 4, 7-9) D) Right to Information - Exemption from Disclosure - Right to Information Act, 2005, Section 8(1)(a) - The respondents contended that the documents could not be accessed under RTI due to exemption for information affecting sovereignty and security. The court did not decide on this issue as it was not necessary for the preliminary objection. (Para 2)
Issue of Consideration
Whether a review petition can be maintained when it relies on documents that were unauthorizedly removed from government custody and marked secret under the Official Secrets Act, and whether such documents can be used in court proceedings.
Final Decision
The judgment does not provide a final decision on the maintainability of the review petition; it only discusses the preliminary objection and the legal provisions. The text ends before the conclusion.
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
