In a setback for the Centre, the Supreme Court Wednesday allowed three documents relied upon by petitioners seeking a review of its December 14, 2018 judgment in the Rafale aircraft deal matter, and dismissed the government’s preliminary objection on the maintainability of the review petitions and claim of privilege over these documents.
In two separate but concurring rulings — one by Chief Justice of India Ranjan Gogoi and Justice S K Kaul, and the second by Justice K M Joseph — the bench, which went into contentions raised by Attorney General K K Venugopal on behalf of the government, said “we deem it proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents, admissibility of which, in the judicial decision making process, has been sought to be questioned”.
The documents at the centre of the row had been published by The Hindu newspaper in February, and one of these had also been released by the ANI news agency. The Supreme Court order mentioned that The Wire digital magazine too had carried one of the documents.
The Attorney General had objected to the documents relied upon by the review petitioners — former Union Ministers Yashwant Sinha, Arun Shourie and lawyer Prashant Bhushan — on three grounds: that the documents had been unauthorisedly removed from the Ministry of Defence and used by the petitioners in violation of Sections 3 and 5 of the Official Secrets Act, 1923; that they could not have been accessed under the Right to Information Act in view of provisions contained in Section 8 (1) (a) of the Act; and that they were entitled to privilege under Section 123 of the Indian Evidence Act, 1872.
Writing the first order, CJI Gogoi cited the decision of the US Supreme Court in the New York Times Company vs. United States wherein it refused to prohibit the publication of the Pentagon Papers. “By a majority of 6:3, the US Supreme Court declined to pass prohibitory orders on publication of the ‘Pentagon Papers’ on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law-making, thereby violating the sacred doctrine of separation of powers,” the order stated.
“We do not see how and why the above principle of law will not apply to facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice 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,” it said.
On the question of admitting unauthorisedly obtained documents, CJI Gogoi and Justice Kaul’s order said the court had held in the past that “test of admissibility of evidence lies in its relevancy” and “unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out”.
Justice Joseph added “in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest”.
On the contention that the documents were barred from disclosure under the RTI Act, 2005, CJI Gogoi and Justice Kaul said Section 8 (2) of the Act “contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under subsection (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.”
Their order said “when 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”.
On this point, Justice Joseph said the proviso to Section 24 of the RTI Act “declares that even though information available with intelligence and security organisations are generally outside the purview of the open disclosure regime contemplated under the Act, if the information pertains to allegations of corruption or human rights violations, such information is very much available to be sought for under the Act”.
He said that with the passing of the Act, “a basket of rights has been given fruitful meaning… Section 8(2) of the Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub-section (1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows the harm to the protected interests”.
Ruling on the Centre’s claim of privilege, the bench said Section 123 of the Indian Evidence Act relates to unpublished public records whereas the documents in question had already been published. It also referred to earlier decisions wherein it was held that “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,” said the CJI and Justice Kaul, “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”.
The Attorney General had argued that the there were some state actions which were outside the purview of judicial review and the Rafale case was one such matter. On this, the judges recalled the ruling in the Kesavananda Bharati Sripadagalvaru vs State of Kerala and said: “The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena.”