“Public interest” as against “claim of privacy, immunity and privilege” -By Rahul Gupta

The Author, Rahul Gupta, is Practicing Advocate at the Delhi High Court, New Delhi.

Supreme Court of India has very recently pronounced judgments in the matters (Yashwant Sinha & Others vs CBI on 10.04.2019/ Association for Democratic Reforms vs Union of India on 12.04.2019) wherein the court has laid down that government cannot enjoy immunity and privilege at the cost of public interest.

The Supreme court while upholding “public interest” has pronounced that when any deal/agreement/information pertaining to the government is already in the public domain, even though the source of the said information is under challenge being procured in unauthorized manner and more particularly in violation of the provisions of Official Secrets Act, 1923, still the Court shall decide in favor of disclosure and consideration of any such information and evidence if it finds that “public interest” is put to any jeopardy.

On this issue the Bench observed,

Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu’ newspaper. That apart, as held in S.P. Gupta vs. Union of India, AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the 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. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further. 

The ultimate test of admissibility of the evidence lies in its relevancy unless there is any express or necessarily implied prohibition in the Constitution or any other law that evidence obtained as a result of illegal search or seizure is liable to be shut out.

Supreme Court has upheld the issue of freedom of press and right of publication to be in consonance with the fundamental rights of freedom of speech and expression guaranteed under Constitution of India and in this regard placed reliance upon the US Supreme Court Judgment in “New York Times Company vs United States” wherein Marshall, J declined to recognize the right of the Government to seek any restraint order on publication of certain papers titled “Pentagon Papers” on the ground that the first amendment to the US Constitution guaranteed freedom of press and did not contemplate any restriction on publication of items or materials specified in the Code.

The Court has rightly held that the claim of privilege under Section 123 of Indian Evidence Act, 1872 relates to unpublished public records and that apart, the claim of immunity against disclosure has to be essentially adjudged on the touchstone of “public interest”.

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