The case is related to the Rafale deal entered into by India and France and pertains to the three classified documents that provide evidence to the political storm. The Government was accused of corruption and abuse of power because the prime minister approved of the purchase at such a high cost. Also, objections were raised on the admissibility of the documents in the public domain.
The Supreme Court’s three-judge bench held that the three articles were admissible in the Court as evidence as they are no more secret and had already been in print in multiple editions of The Hindu newspaper. It was also deemed that there was no infringement of the Official Secrets Act, 1923. Section 123 of the Indian Evidence Act, 1872 was also not relevant in this case. The Court referred to Section 8(2) of the Right to Information Act, 2005 and observed that in the present case, public interest outweighed the damage of non-concealment; hence the documents were no more restricted for public information.
The Rafale Arms sales deal is a 7.8 billion Euro trade agreement where France would sell its 36 Rafale Fighter Jets to India. India had been constantly negotiating this sale deed with France since 2007. In 2007 it was agreed that 18 aircraft would be purchased in fly-away condition and 108 aircraft would be produced in India itself. However, in 2015 the Indian prime minister and the French president during their Paris visit announced a new deal for the purchase of only 36 Rafale aircraft. It was also announced by the Ministry of Defence that the tender for 126 aircraft was withdrawn. The contention started after this announcement was made as questions were raised on the high cost of the deal.
Multiple litigations were filed in 2018 that raised questions of pricing irregularities and transparency of the deal. The Supreme Court on 15 December 2018 dismissed all the pleas seeking review of its decision via CBI Investigation and held that there was no point in doubting the decisions made by the Central government.
Yashwant Sinha, Arun Shourie and Advocate Prashant Bhushan approached the court to file an appeal to review its verdict on 2 January 2019. Thereafter, on 21 February 2019, the court accepted this petition challenging that the judgment was based on inaccurate shreds of evidence and facts presented by the government.
On 6 March 2019, the CBI notified the court that some documents which were related to the Rafale Deal had been missing from the authorized office. The CBI periled the Hindu newspaper for publishing articles that were related to the stolen documents.
Further, on 10 April 2019, the court set aside the Union’s objection and held that the listed documents should be placed on the record. On 14 November 2019, the court rejected the review petitions stating that it had limited powers to scrutinize the defence documents under Article 32 of the Indian Constitution.
The judgment was delivered by a three-judge bench comprising of the then CJI Ranjan Gogoi, Justice K.M. Joseph and Justice Sanjay Kishan Kaul.
The court held that publication of the three documents in The Hindu newspaper had no issues. It reiterated various judgments from the past to emphasize freedom of the press. The court stated that media, especially visual media plays a pivotal role in a democratic country and is trusted by the country’s people; therefore its freedom should not be suppressed. The publication of the documents in The Hindu was by the right to speech and express freely without fear.
The court emphasized the importance of free press by stating the case Indian Express Newspapers (Bombay) Private Limited v. Union of India and Printers (Mysore) Limited v. Assistant Commercial Tax Officer. Extracts from these cases were mentioned by the court in its judgment. The Court also referred to Romesh Thapar v. State of Madras and Brij Bhusan v. State of Delhi where it was affirmed that freedom of speech cannot be restricted except under the situations mentioned in Article 19(2) and therefore it cannot be restrained in the name of public interest. The Court also expressed the view mentioned in Printers (Mysore) Limited v. Assistant Commercial Tax Officer where it was said that freedom of the press is a cherished right in democratic countries.
The Court asserted that neither the Official Secrets Act, 1923 nor any other statute has any such provision by which the Executive wing has the power to restrain publication of articles or documents marked as secret or bringing such articles in the court of law which has been asked to arbitrate such an issue. Therefore the publication of the three documents was within Constitutional Provisions under Article 19.
On the claim made by the respondents that they have a privilege of not disclosing the three documents under Section 123 of the Indian Evidence Act, 1872, it was noted by the Court that the three documents were already in the public domain and had been published in The Hindu multiple times.
For this, the Court referred to S.P. Gupta v. Union of India and comprehended that the decisions under Section 123 ought to be judged on the grounds of public interest and since the documents were already out in the public domain, it would sound irrational for the court to refrain itself from reading and referring the three said documents. Banking on the judgment given in Pooran Mal v. Director of Inspection (Investigation) of Income Tax, New Delhi, it ascertained that if the documents have been procured improperly, it will not prevent them from being considered by the Court.
The Court referred to Section 8(1) of the Right to Information Act, 2005 which relieves disclosure of information to the public if that serves the public interest, but Section 8(2) allows such disclosure if the public interest in disclosure surpasses the harm required to be protected. With this, it also mentioned that the purpose of the act is to promote transparency and accountability in the functioning of the public authorities. This was stated in Chief Information Commissioner v. State of Manipur (2011). After stating all this, it concluded that since these documents had already come in to the knowledge of the public, its non-disclosure under Section 8(1) of the Act will serve no purpose.
The Court set aside the contentions made by the respondents that there are some State actions that are immune from judicial review as they are inside the political realm. It avowed that although all Constitutional decisions have political consequences, it is important to arrive at those decisions in the ambiance of a courtroom, distant from its political consequences. The Court rejected the doubts made on the legitimacy of the inclusion of the three documents in the review petition.
The Supreme Court by its judgment dismissed the arguments made by the government and emphasized the importance of Freedom of the Press in a democracy. It reasoned that since the three documents were already in the public domain, they are no more secret and hence Section 8(1) of the RTI Act, 2005 did not apply. It also regarded in its judgment that the Executive has no right to restrain the Freedom of Press and therefore can’t control the publication of documents in the newspaper.
The Court in its judgment had given precedence to the principles of transparency and accountability, which are the basics of a good governance system, over the conventional principles of privileges and protection. This judgment will further serve as an example for the future benches in advancing transparency and the public good. The Court not only set aside the government’s line of reasoning but also set up that public interest can supersede the secrecy of documents at times. This judgment was a great victory for Indian journalism.
- Lexis nexis, Yashwant Sinha and Others Versus Central Bureau of Investigation through its Diector and Another, LNIND 2019 SC 330 <https://advance.lexis.com/document/?pdmfid=1523890&crid=fbd26773-3013-4ee0-bd78-4409e35904bb&pddocfullpath=%2Fshared%2Fdocument%2Fcases-in%2Furn%3AcontentItem%3A5VY3-Y1H1-JF75-M1B5-00000-00&pdcontentcomponentid=381755&pdteaserkey=sr0&pdicsfeatureid=1523894&pditab=allpods&ecomp=_byxk&earg=sr0&prid=f3f42b1b-2093-429a-ae48-05db49cb5232 > accessed on 7 January,2021
- Curious For Law, Yashwant Sinha and Others Versus Central Bureau of Investigation through its Diector and Another [WP (Crl.) 225/2018; RP (Crl.) 46/2019] <https://curiousforlaw.com/yashwant-sinha-rp-crl-46-2019/ > accessed on 9 January, 2021
- Global Freedom of Expression, Yashwant Sinha V Central Bureau of Investigation, <https://globalfreedomofexpression.columbia.edu/cases/yashwant-sinha-v-central-bureau-of-investigation/ > accessed on 9 November 2021
 ”No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit”.
 “(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”
 1985 (1) SCC 641
 1994 (2) SCC 434
 1950 AIR 124, 1950 SCR 594
 1950 AIR 129, 1950 SCR 605
 ”Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”
 “Protection of certain rights regarding freedom of speech etc…”
 “No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit”.
 AIR 1982 SC 149
 AIR 1974 SC 348
 (2011) 15 SCC
She is a first year student of B.B.A LL.B at Symbiosis Law School, Noida. She has a keen Interest in socio-political issues of the country and international relations