The Leaflet

| @theleaflet_in | March 14,2019

A three-judge bench of the Supreme Court, comprising the Chief Justice of India (CJI) Ranjan Gogoi, Justices Sanjay Kishan Kaul and Justice K M Joseph today reserved the order on the preliminary objection raised by the Central Government with regard to the admissibility of the secret documents annexed to the review petitions in the Rafale case.

The preliminary objection also includes a claim of privilege by the government with respect to secret documents under section 123 of the Evidence Act.

The hearing today began with the submissions by the Attorney General (AG) for India K K Venugopal that the petitioners, Prashant Bhushan, Yashwant Sinha and Arun Shourie, could not have relied on the file notes of the defence ministry, as they were privileged documents, and as such even the court could not look into them.



The AG also drew the court’s attention to Section 8(1)(a) of the RTI Act which exempts disclosure of information that would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State.


RTI and public interest


Interjecting, Justice K M Joseph asked the AG to read out to the court Section 24 of the RTI Act, which states that even when certain organisations are excluded from the purview of the Act, they are bound to provide information if it pertains to corruption and human rights violations.



Justice Joseph also drew attention to an Office Memorandum issued by the Department of Personnel & Training (DoPT) on June 23, 2009 in which the latter had clarified that file notings could be disclosed under the RTI Act, 2005, subject to exemptions under section 8 of the same Act.

“When Parliament passed the RTI Act, it had brought (about) a revolution. Let us not go back,”, Justice Joseph said to the AG.


Bhushan’s rebuttals


Petitioner Prashant Bhushan submitted the documents in question were already in the public domain and pointed to the Supreme Court’s decision in S P Gupta’s case to buttress his argument that public interest involved in the matter warranted their disclosure.

He also referred to the Pentagon Papers case in the U S, where the Supreme Court allowed defence documents relating to the Vietnam War to be published after rejecting the government’s claim of national security to privilege the papers.  He further rebutted the AG citation of Section 123 of the Evidence Act, saying it applied only to unpublished documents; in this case the documents had already been published.



He also referred to an order from the Supreme Court dated 8 September, 2014 in the 2G case in which court had asked Prashant Bhushan to disclose the source of information and had later recalled its order. In the “coal scam” matter also the court had said it was difficult to find fault with the whistleblower for accessing secret file notes in public interest.


Central Government Affidavit


The Central Government had on March 13 2019, filed an affidavit in the matter claiming that national security had been jeopardised since “the review petition has been widely circulated and is available in public domain, the same is available to the enemy/our adversaries’”

It said the disclosure of the documents relating to the negotiations had adversely affected the sovereignty, security and friendly relations with foreign countries. The affidavit said those who had conspired to make photocopies of the documents and annex them to the Review Petition/Miscellaneous Application, had committed theft by their unauthorised photocopying.



The Centre also claimed that as unpublished official records relating to affairs of the state, these documents belonged to a class under which the Government of India was entitled to claim privilege under certain sections of the Indian Evidence Act, 1892.

The affidavit stated that an internal enquiry had been constituted on February 28, 2019 into the leaked documents. “In particular, it is of utmost concern to the Central Government to find out where the leakage took place so that in future the sanctity of the decision-making process in governance is maintained,” the affidavit stated.

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