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Informist, Tuesday, Sep 24, 2024

 

NEW DELHI – Observing that national security concern outweighs and eclipses contractual obligation, the Delhi High Court today said that a document classified as top secret and protected under Official Secrets Act, 1923, can't be directed to be produced during arbitral proceedings. The high court rejected a tribunal's April order asking the Director General, Project VARSHA to submit the top secret documents in a sealed cover.

 

The high court said that if any information is stated to be protected and classified as top secret by the government of India and directly relates to defence of India, the due importance to such crucial facts ought to be given. "Therefore, learned Arbitral Tribunal, in my humble opinion, should not have insisted for production of any such document in a sealed cover either, as at any subsequent stage also, it is, virtually, beyond its purview to open such sealed cover and to ponder over whether these were rightly labelled as classified or not," said the court.

 

In April, the tribunal had said that if at any subsequent stage, the claimant in the case was to make any request for disclosure of those documents, thereof, it would take appropriate call on such a request, after hearing the parties. "Even if these were to be opened and evaluated, it could not have been declassified in the proceedings of this kind. To venture into any such exercise and to scrutinise and evaluate any such thing does not seem permissible," the high court said today.

 

Justice Manoj Jain said that the moment the documents were labelled as confidential and classified, that should have been the end of the matter. "In view of the above, the petition is allowed and, resultantly, the petitioner i.e. employer is relieved of its obligation to produce these documents before the learned Arbitral Tribunal," said the court.

 

The case has its genesis from a contract between Navayuga-Van Oord JV and the Director General, Project VARSHA in 2017, for construction of the outer harbour for project VARSHA. Several disputes and differences arose between the parties in relation to the contract which resulted in issuance of notice of termination by Director General, Project VARSHA. Eventually arbitration was invoked by Navayuga-Van Oord JV. 

 

During the pendency of arbitration proceedings, an application was filed by Navayuga-Van seeking inspection and production of documents. These related to detailed design reports prepared by the designer and other related things. Advocate K.K. Venugopal, appearing for the director general, said that "Project VARSHA" was for construction of Outer Harbour works of a greenfield naval base. The project is for ensuring India's strategic preparedness for its defence and security and the contract itself declares that it is covered by the Official Secrets Act.

 

Venugopal said that the documents sought to be produced include the detailed design reports which were classified and sensitive documents and relate to a "prohibited place" under the Official Secrets Act. If these are permitted to be produced, it would be akin to providing the blueprints of the project, which cannot be afforded to be disclosed due to national security, he added.  End

 

Reported by Surya Tripathi

Edited by Deepshikha Bhardwaj

 

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