{"id":213491,"date":"2019-04-10T11:05:46","date_gmt":"2019-04-10T05:35:46","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=213491"},"modified":"2019-04-18T15:28:41","modified_gmt":"2019-04-18T09:58:41","slug":"breaking-rafale-deal-centres-preliminary-objections-regarding-admissibility-of-the-leaked-documents-dismissed","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2019\/04\/10\/breaking-rafale-deal-centres-preliminary-objections-regarding-admissibility-of-the-leaked-documents-dismissed\/","title":{"rendered":"Rafale deal: Centre’s preliminary objections regarding admissibility of the leaked documents dismissed [Full Report]"},"content":{"rendered":"

Supreme Court<\/strong>: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed Centre\u2019s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible. Joseph, J, wrote a separate but concurring judgment.<\/p>\n

CJI Gogoi, writing for himself and Kaul, J wrote<\/em>,<\/p>\n

\u201ceven assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?\u201d<\/p><\/blockquote>\n

On \u2018The Hindu\u2019s\u2019 right to publish the documents in question<\/strong><\/span><\/p>\n

\u201c<\/strong>the publication of the said documents in \u2018The Hindu\u2019 newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press.\u201d<\/p><\/blockquote>\n

The Court said that no law enacted by Parliament specifically barring or prohibiting the publication\u00a0\u00a0 of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to it\u2019s notice. Hence, the right to such publication is well within the constitutional guarantee of freedom of speech.<\/p>\n

KM Joseph, J\u2019s in his concurrent opinion noted<\/em><\/p>\n

\u201cThe documents in question have been published in \u2018The Hindu\u2019, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.\u201d<\/p><\/blockquote>\n

On alleged violation of Sections\u00a03<\/a> and\u00a05\u00a0of\u00a0the\u00a0Official\u00a0Secrets\u00a0Act,\u00a01923<\/a><\/strong><\/span><\/p>\n

The Court noticed that there is no provision in the Official Secrets Act and no such provision in any other statute 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.<\/p>\n

Insofar as the claim of privilege is concerned, on the very face of \u00a0it, Section 123 of the Indian\u00a0\u00a0 Evidence Act, 1872 relates to unpublished public records. Noticing that the three documents have been published in different editions of \u2018The Hindu\u2019 newspaper, the Court said,<\/p>\n

\n

\u201cthe 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.\u201d<\/p>\n<\/blockquote>\n

On exemption from disclosure under Section 8(2) of the Right to Information Act, 2005<\/a><\/strong><\/span><\/p>\n

The Court noticed that Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub\u00adsection (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. It said,<\/p>\n

\u201cWhen 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.\u201d<\/p><\/blockquote>\n

On potential of the case to\u00a0threaten\u00a0the\u00a0security of citizens<\/strong><\/p>\n

The Court rejected the contention and noted the lines from Kesavananda Bharati\u00a0 v. State of Kerala, (1973) 4 SCC 225<\/a>,<\/p>\n

\n

\u201cThat all Constitutional interpretations have political consequences should not obliterate the fact\u00a0\u00a0 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.\u201d<\/p>\n<\/blockquote>\n

[Yashwant Sinha v. CBI, 2019 SCC OnLine SC 517<\/b><\/a>, decided on 10.04.2019]<\/p>\n

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