SC rejects preliminary objections by govt IN RAFALE CASE

FREEDOM: Chief Justice Gogoi upheld the principle of freedom of the media by citing the Pentagon case papers, the basis for the resignation of American President Richard Nixon

By Krishnadas Rajagopal

The SC turned down the argument of the Modi government that the Rafael papers published by The Hindu were stolen and therefore could not be relied upon by the SC in deciding on the Rafale corruption scam

In an unanimous judgment, the Supreme Court on Wednesday decided to hear the review petitions on the Rafale fighter aircraft deal on merits on the basis of the documents published in the media, including The Hindu, on the disparity in pricing details of the 36 jets, objections raised by the Indian negotiating team to parallel negotiations conducted by the Prime Minister’s Office, among others.
The Bench led by Chief Justice of India (CJI) Ranjan Gogoi dismissed the preliminary objections raised by the Union government claiming privilege over the Rafale documents and projecting the publication of the documents as part of a conspiracy following the leak of these defence purchase records from the Ministry of Defence.
Attorney General K.K. Venugopal submitted that the review petitions were based on “stolen” Rafale documents, which are not admissible in evidence.
“We deem it proper to dismiss the preliminary objections to hold and affirm that the review petitions will be adjudicated on their merits on the basis of the relevance of the three documents whose admissibility was questioned by the respondents [government]),” Chief Justice Gogoi read out the operative portion of the judgment that he and Justice SK Kaul wrote.
Chief Justice Gogoi added that Justice KM Joseph had concurred with them in a separate judgment.
“He has also reached the same conclusion but in a different manner,” the CJI said. The dates of hearing the review petitions will be fixed later.
The case was reserved on March 14. The review petitions were filed against a December 14, 2018 judgement of the Supreme Court upholding the 36 Rafale jets deal. The government wanted the court to refrain from examining the documents. It claimed that the documents were unauthorised photocopies of the originals kept in the Ministry of Defence and sneaked into the public domain.


The government said national security was at stake and the leak of the documents amounted to offences under the Official Secrets Act (OSA).
But Justice Joseph had countered the government version by drawing the latter’s attention to the Right to Information Act (RTI) of 2005. The judge said the information law has revolutionised governance and overpowered notions of secrecy protected under the Official Secrets Act (OSA) of 1923.
On the last day of hearing, Justice Joseph made Mr. Venugopal read out Section 22 of the RTI Act declared RTI to have an “overriding effect” over the OSA. Section 24 mandates even security and intelligence organisations to disclose information on corruption and human rights violations. Finally, Section 8(2) compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests”.

Courtesy: The Hindu

Extract of the Supreme Court Judgement in Yashwant Sinha & Others Vs. CBI through its Director & Another

  1. The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech.
    No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice. In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras (AIR 1950 SC 124) and Brij Bhushan vs. The State of Delhi (AIR 1950 SC 129)
  2. 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 SP 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.
  3. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu’ newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income ­Tax, New Delhi this Court has taken the view that the “test of admissibility of evidence lies in its relevancy, 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.”
  4. Section 8(2) of the Right to Information Act (already extracted) 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. 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.

Extract of Justice Joseph’s concurring opinion
In this case however as I have already noticed there are the following aspects. The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.
Lastly, the case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and as already noted the state does not take objection to the correctness of the contents of the documents. The request of the respondents is to remove the documents from the record. I would observe that 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. In the writ petition out of which the review arises the complaint is that there has been grave wrong doing in the highest echelons of power and the petitioners seek action inter alia under the provisions of Prevention of Corruption Act. The observations made by Stephen,J. in para 26 of his judgment in Robinson v. South Australia (No. 2)(1931) and extracted by me in para 29 of my order may not be out of place.

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