Live Law: New Delhi: Tuesday, June
14, 2016.
The
‘privilege’ under Section 123 of the Indian Evidence Act is claimed frequently
by the Government to authorize them not to produce its unpublished records in
courts. As per this section a witness cannot be permitted to give any evidence
which is derived from unpublished records relating to any affairs of state
without permission of the officer at the head of department concerned. In a
landmark decision in Punjab v SS Singh AIR 1961 SC 493, the Supreme Court
considered the effect of Section 123 and Section 162 of Indian Evidence Act on
the claim of privilege by government to the minutes of the meeting of council
of Ministers, advice tendered by the Public Service Commission etc. The Supreme
Court, through Gajendrakadkar J, writing for majority, laid down certain rules
in this regard. The fifth rule is relevant for this case.
(5) A
privilege should not be claimed under section 123 simply because it is
apprehended that the document, if produced would defeat the defense raised by
the State. The apprehension that the disclosure may adversely affect the
government, or that it may provoke public criticism, shall not be a criterion
for claiming privilege. The sole and the only test which should determine the
decision of the head of the department is injury to public interest and nothing
else.
Though such a
broad rule is laid down the Supreme Court in that case held that documents
regarding minutes of Cabinet Meeting or advice of PSC to the Ministers or
advices of the Council to Governor are protected under Section 123 of Evidence
Act. Subbarao J in his dissenting judgment ruled against granting privilege to
the report of the Public Service Commission as he failed to understand how
public interest would suffer if that report was disclosed and how such
disclosure would deter the Commission from expressing its views in future
cases.
The majority
in SP Gupta (AIR 1982 SC 149) held that the correspondence between high
dignitaries and notes made by the Constitutional functionaries cannot be
regarded as a class protected, entitled to immunity against disclosure.
In Shri Harish
Chandra Singh Rawat v Union of India, writ petition M/S No. 795/2016,
Uttarakhand High Court’s Division Bench in its recent order invalidating
President’s Rule in Uttarakhand, referred to these two important cases and
stated that the larger bench in SP Gupta case took the view that in an open
democratic society, there is little scope for claiming right to withhold
documents. The trend should be disclosure of information. It is crucial in the
efficient working of a mature democracy. The division bench said:
…. We notice
that, after the Right to Information Act has been passed by the Parliament,
there is a change brought about. It is true that in Bommai’s case and in
Rameshwar Prasad’s case the court has taken a view that it is open to the
Government to raise the claim under Section 123. We only wish to notice that
under Section 8(1)(i) of RTI Act, ‘the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which the decisions were
taken shall be made public after the decision has been taken, and the matter is
complete, or over’. Therefore after the enactment of the said law in keeping
with the inclination of the people to know more about the state affairs of the
State, without which their right under Article 19(1)(a) itself would be
considerably obstructed, the Parliament has brought about this change. We are
highlighting this aspect only to point out that, under this provision, as and
when the Council of Ministers takes a decision, it would appear to be the duty
to make public the material and also the reasons for the decision of the
Council of Ministers. This will result in opening up of the windows and
allowing in the sunlight of information and knowledge, which, by far, is the
best disinfectant for killing all kinds of ills that are plaguing our body
polity’.
The Division
Bench of Uttarakhand reviewed the material produced and invalidated the
proclamation of President’s Rule.
When New York
Times was publishing news stories revealed unpublished records of Defence
Department report called Pentagon Papers regarding US war on Vietnam, state
wanted injunction against publication claiming the privilege to the reports as
classifying them ‘top secret’, the US Supreme Court refused both claims – to
privilege and prayer for injunction. It was held that Constitution bars any
restraint upon newspaper publication, regardless of the nature of material
published, except under special circumstances, where it would result in direct,
immediate and irreparable damage, which was called doctrine of ‘clear and
present danger’. (New York Times v United States, 403d U S 713 (1971). This
decision was a landmark reversing the trend set by US v Renolds, 345 US 1(1971)
where the claim of privilege of documents regarding certain test electronic
equipment was upheld. Here, the widows of pilots who had died in an aircrash
demanded the documents to know the reason for crash.
Some of
the legal provisions which incorporate right to information are as follows:
1.
Article 19(1): Right to information is intrinsic part of
freedom of speech and expression.
2.
Article 21: Right to know is part of Right to life
3.
Article 22(1): State has to give grounds of arrest and
under (5) the grounds of detention has to be given.
4.
Article 311(2): the state has to inform the grounds for
dismissal of government servant.
5.
Section 41B, Code of Criminal Procedure, arresting
officer has to inform the arrested his clear identification, inform person
arrested, his relative or friend named by him.
6.
Section 50, Cr P C, person arrested should be informed of
grounds of arrest and of right to bail.
7.
Section 327 Cr PC all judicial proceedings have to be
conducted in open court.
8.
Section 26, Representation of Peoples Act 1951, the
candidates have to submit statement of election expenses.
9. Section 29(a) Representation of Peoples Act, 1951 the
Political Parties putting up election candidates must give information about
their objects, names etc.
10. Every candidate
contesting election has to give background of his/her education, crimes and
financial status. (Supreme Court judgment in ADR v Union of India, 2002)
11. Every income tax
payer is bound to disclose his true income as per sections 137 and 277 of
Income Tax Act 1961.
Right to
Information Act is the latest Act that has codified the ‘freedom of speech and
expression’ guaranteed under Article 19(1)(a) in terms of right to receive
information. This Act has consolidated all the above listed provisions
facilitating access to information in different legislations. RTI Act has
revolutionarily changed the so called law of privilege where the Government
used to hold information as secret as matter of principle and disclosed
exceptionally. Since RTI Act 2005, the rule is disclosure and exception is
withholding it. RTI has overridden the Official Secrets Act, 1923 and all other
legislations which contradict or conflict the RTI Act. The provisions of
privilege in Indian Evidence Act have to give way to the disclosure now as per
Section 22 of Right to Information Act, 2005. If the documents pertain to
affairs of state, they cannot be withheld by state as privileged documents
under Evidence Act, but has to disclose under RTI Act, subject only to Section
8 and 9. The privilege against disclosure under Evidence Act is eclipsed by
Right to Information Act. 7.6.2016.
(Professor
Madabhushi Sridhar is a Columnist, Media Law Researcher and Central Information
Commissioner.)
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