Govt’s Rafale secrecy plea: SC says need to share information when issue is corruption, rights

Ananthakrishnan G
Justice Joseph said the question of revealing file notings had come up in the past as well and the government position then was they should be disclosed unless covered by exceptions in Section 8 of the RTI Act.

Observing that even organisations outside the purview of the Right to Information Act will have to share information if the issue is one of corruption or human rights, the Supreme Court Thursday reserved its order on the government's claim of privilege over certain documents submitted by petitioners seeking a review of its December 14, 2018 order that dismissed PILs for a probe into alleged irregularities in the Rafale deal.

Justice K M Joseph, sharing a bench with Chief Justice of India Ranjan Gogoi and Justice S K Kaul, said: "Even in the case of those institutions which are not covered (by the RTI Act), if information is asked for in respect of corruption or human rights, they are bound to give them."

CJI Gogoi went on to add: "What my brother is saying is even if it's a sensitive organisation, there is an exception."

A day earlier, the government, through an affidavit filed by Defence Secretary Sanjay Mitra, had sought dismissal of the review plea saying the documents were exempt from disclosure under Section 8 (1) (a) of the Right to Information Act, 2005 and the review petitioners - former Union Ministers Yashwant Sinha, Arun Shourie and advocate Prashant Bhushan - "have no authority whatsoever to produce the same before this Hon'ble Court without the explicit permission of the Government of India, Ministry of Defence".

Justice Joseph's observation was in response to Attorney General K K Venugopal's submission that intelligence agencies and others were exempted from the purview of the RTI Act and that the documents in question, attached to the review petition, were such that could have been withheld from disclosure under the Act.

Arun Shourie outside the Supreme Court on Thursday (Express Photo: Amit Mehra)

Venugopal said since the documents had been produced in court, "we can claim privilege only to get rid of it".

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In its affidavit, the government had sought removal of these documents, published by The Hindu newspaper and also released by news agency ANI with additional notings, from the record of the case, saying these were of sensitive nature and their appearance in the public domain had put national security in jeopardy.

On February 8, a report in The Hindu, citing a "Defence Ministry note" of November 2015, had stated that the Ministry "raised strong objections to 'parallel negotiations' conducted by the Prime Minister's Office (PMO) with the French side" in the Rafale deal. ANI also released the same note with more notings.

Last week, Venugopal threatened to invoke the Official Secrets Act and initiate "criminal action" against two publications and a lawyer. He initially did not name the publications but towards the end of the hearing said "documents in the possession of The Hindu and ANI are stolen documents".

His remarks drew strong criticism and were condemned by press associations, including The Editors Guild of India, Press Club of India, Indian Women Press Corps and Press Association, as "reprehensible… threats" with the "potential of sending out a chilling effect to one and all in the media".

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In court Thursday, Venugopal cited Section 123 of The Indian Evidence Act, 1872 to buttress the claim of privilege - the section states that "no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit".

He said the documents were unauthorisedly photocopied and leaked, adding that these also enjoyed protection under the Official Secrets Act, 1923.

Justice Joseph said the question of revealing file notings had come up in the past as well and the government position then was they should be disclosed unless covered by exceptions in Section 8 of the RTI Act.

To this, the AG said the concept of corruption in government was not contemplated by the RTI Act. "Your Lordships will be adding something," he said.

Justice Joseph told him: "The Parliament, when it made the RTI Act, intended to bring about a complete revolution. Now let's not go back."

Appearing for petitioners Sinha, Shourie and himself, Bhushan said Section 123 of Evidence Act applied to unpublished documents. The papers in question, he said, had already been published and were in the public domain, so "it's untenable for the government to now say they should however be not relied upon by the court".

The government's "intention is malafide", he said, adding that the report of the Comptroller and Auditor General (CAG) of India had details of ten Defence purchases and all of them were in the public domain.

As Bhushan began to delve into other details of the petition, the bench said it would first decide on the preliminary objections raised by the government regarding the admissibility of the documents in question.

Bhushan said the government note to the court in November 2018, when it was hearing the Rafale matter, had said that the CAG report would be redacted. He asked how did the government know then that the report would be redacted.

Intervening, the AG pointed out that the government had requested that pricing details be redacted because not doing that would be in breach of the government-to-government agreement with France for purchase of 36 Rafale fighter aircraft. France, he said, might want to sell the aircraft to other counties who could question it on the price if details of the sale to India were known.