The Rafale judgment is historic

[dropcap]W[/dropcap]HILE the two judgments authored by Chief Justice of India (CJI) Ranjan Gogoi for himself and Justice Sanjay Kishan Kaul, and the separate but concurring judgment authored by Justice K M Joseph are historic because they entrench the fundamental right to free speech and expression for the press as well as well as  an individual, there are also  differences between them that need to be celebrated.


Freedom of the Press


While the Indian Constitution does not guarantee freedom of the press akin to that in the   United States  Constitution, the  understanding of our courts has always been that the guarantee under Article 19(1)(a)  is also a guarantee of the freedom of the press as distinct with the freedom of an individual.

In this case, however, the issue was squarely the freedom of the press since The Hindu newspaper had, in the  month of February 2019, published documents including Note-18 of the Ministry of  Defense – an offence, if any, under the Official Secrets Act. The Attorney General had already argued that the documents were “stolen” by the publication. The rejection of this preliminary objection reaffirms the right of the press to publish documents claimed to be covered by “privilege”.

The majority judgment states:

“…the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech (Emphasis ours). 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 Thapar vsState of Madras and Brij Bhushan vs The State of Delhi”




Once the right of freedom of the press is established, the question arises whether the  documents in question were “privilege” under Section 123 of the Indian Evidence Act, 1872. The majority judgment chooses not to address this issue since the  documents are already in the  public domain. It notes

“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as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records.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…….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”.



Justice K M Joseph deals in greater detail with issue of privilege under section 123 of the Indian Evidence Act, 1872 whereas the majority judgment adopts a “common sense approach”,  considering it unnecessary to go into the issue given that the documents are already in the public domain.

The other vital issue which has been addressed is the question whether the manner in which documents procured would make them inadmissible. Here the majority judgment points out “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.”

This puts an end to the famous theory of the Attorney General that the documents have been “stolen”. One can, therefore, conclude that even “stolen”  documents when published will be admissible provided they are genuine, undisputed and relevant. One may assume the theory of “stolen document” has been buried six feet under, paving the way for transparency in public interest  to prevail over secrecy.

The next issue  that the majority judgment had to deal with was the with the Right to Information Act, 2005 (RTI). The majority judgment refers to the  argument of alarm  as “an omnibus statement by the Attorney General” that there are certain State actions that are outside the purview of judicial review and which lie within the political domain.

The AG also warned that to keep the issue alive would have the “potential to threaten the security of each and every citizen residing within our territories…”. To this, the court reminded the AG of what was  observed by Justice H R Khanna in Kesavananda Bharati Sripadagalvaru vs State of Kerala:

“Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge Made Law. 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. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”

The Supreme Court has  reminded us of the truism that every judgment of the constitutional court has political consequences. This is something that our journalist should remember when they refer to “politics” as a dirty word.  



On the other hand, what distinguishes Justice Joseph’s judgment from that of the majority is his emphasis on the argument of “privilege” claimed under Section 123 of the Indian Evidence Act, 1872 and his interpretation of Section 8(2) of the RTI Act, 2005

After quoting extensively from the seven-judge bench decision of the Supreme Court in S P Gupta vs Union of India and M/s. Doypack System Pvt. Ltd. vs Union of India,  Justice Joseph points out the jurisprudence which underpins  the claim of privilege, ie,  the need to strike a  balance between two competing public interest –  (i) the need to maintain the confidentiality of cabinet papers arising  from the “candor principle” which  enables cabinet members to speak freely and in public interest and (ii)  the need to disclose information which is of great public importance that is also in public interest. In every case the court must strike a balance and the larger public interest will prevail.


The role of the court and public interest


Moving on to the role of the court and the argument of the balancing test, he once again quotes from the judgment of Lord Reid in Conway vs Rimmer 1968 AC 910:

“It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would of might be done to the nation, or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question, would put the interest of the State in jeopardy. But there are many other cases where the possible injury to the public is much less and there, one would think that it would be proper to balance the public interests involved”.


Governments very often also claim that the disclosure of confidential documents will lead to ill-informed criticism. To this, Justice Joseph refers to the decision in S P Gupta, where it held

“…..It is only through exposure of its functioning that a democratic government can hope to win the trust of the people. If full information is made available to the people and every action of the government is bona fide and actuated only by public interest, there need be no fear of “ill-informed or captious public or political criticism….”.


Having, thus, disposed of  the claim of privilege, Justice Joseph then goes on to highlight the interpretation of Section 8 of the RTI Act. He deals at the outset with Sections 22 and 24 of RTI Act. It  is the RTI Act which has an overriding effect on the Official Secrets Act, he says. This is of course to state the obvious since Section 22 of the RTI Act itself provides as follows:

“22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”


But our civil society has become so immune to the erosion of the rule of law that we forget that the RTI Act, 2005 overrides the Official Secrets Act. More importantly, Justice Joseph points to Section 24 of the RTI Act. Once again, those in positions of power tend to read half of that section but not the whole. While  Section 24 does not permit  disclosure of information held by intelligence and security organisations, this is only half the story. The truth lies in the proviso to Section 24 which says:

“….Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.”


The challenge to the Rafale deal is the challenge to corruption in high places and hence the proviso is attracted. Justice Joseph also points to the nexus between corruption and the erosion of human rights and he thus observes:

“…The first proviso to Section 24 indeed marks a paradigm shift, in the perspective of the body polity through its elected representatives that corruption and human rights violations are completely incompatible and hence anathema to the very basic principles of democracy, the rule of law and constitutional morality. The proviso 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. The economic development of a country is closely interconnected with the attainment of highest levels of probity in public life. In some of the poorest countries in the world, poverty is rightfully intricately associated with corruption. In fact, human rights violations are very often the offspring of corruption. However, the law giver has indeed dealt with corruption and human rights separately. Hence, I say no more on this”.


On a conjoint reading of Section 8(1) and 8(2) of the RTI Act, he concludes-

“…What interestingly Section 8(2) recognises is that there cannot be absolutism even in the matter of certain values which were formerly considered to provide unquestionable foundations for the power to withhold information. Most significantly, Parliament has appreciated that it may be necessary to pit one interest against another and to compare the relative harm and then decide either to disclose or to decline information…”


The running thread in both the judgments is the protection of public interest. Justice Joseph says-

“It may be necessary also to consider as to what could be the premise for disclosure in a matter relating to security and relationship with foreign state. The answer is contained in Section 8(2) and that is public interest. Right to justice is immutable. It is inalienable. The demands it has made over other interests has been so overwhelming that it forms the foundation of all civilised nations. The evolution of law itself is founded upon the recognition of right to justice as an indispensable hallmark of a fully evolved nation”.


This judgment of the Court will go down in history as one which occupies the same position as the “Pentagon Papers” case. It gives to ordinary citizens an effective right to take action against people in power and those who occupy constitutional office, and an effective right to prosecute them for corruption.

Indeed, Justice Joseph points out that any citizen can lodge a complaint with the police under provisions of the Criminal Procedure Code for offences related to corruption. Perhaps the time has come to move in that direction.



Key Highlights of the Judgment

  • The documents are already in the public domain, no question of claiming privilege arises.

  • Documents, even though obtained by irregular means, are admissible in evidence if relevant and genuine.

  • The RTI overrides the Official Secrets Act.

  • Documents in the possession of security agencies can be disclosed under RTI, if they relate to an allegation of corruption or violation of human rights.