Apex court comes to rescue of RTI - Mystery around defence deals & Rafale
When the political executives, government departments and officers are hell bent
on not sharing the public information with the members of the public, only hope
appears to be the judiciary. The freedom of expression which includes right to
information has survived in this country because of steadfast support and
energisation from judicial pronouncement with profound constitutional wisdom, on
the same lines the right to life survived. Indian citizenry should thank the
Supreme Court which recently reminded the government about the existence of the
Right to Information Act, which overrides the Official Secrets Act (OSA) 1923.
Justice Joseph, one of the three judges on the Bench which is hearing the
petition to review SC's December 14 order ruling out the need to probe into
Rafale deal, asked the government to read out Sections of the Right to
Information (RTI) Act, 2005. The judge said the information law has
revolutionised governance and overpowered notions of secrecy protected under the
Official Secrets Act, 1923.
On the Bench's suggestion the Attorney-General K K Venugopal has read out
Section 22 of the RTI Act, which declared the RTI to have an "overriding effect"
over OSA. Then Section 24, mandates even security and intelligence organisations
to disclose information on corruption and human rights violations. Finally,
Section 8(2), which compels the government to disclose information "if public
interest in disclosure outweighs the harm to protected interests". Section 22,
24 and Section 8(2) are crucial provisions of the Right to Information which
gives primacy to public interest and transparency over the 'secrets' even if the
organisations were totally exempted from the RTI. Especially when corruption or
violation of human rights are possible reasons to hide the information, the
access law mandates such information to be disclosed. When Venugopal defended
that defence, purchases dealt with the security of the State, which "supersedes
everything else", Justice Joseph countered, "Parliament has passed the RTI Act
in 2005 and brought about a complete revolution, a complete change. Let us not
go back to what it was".
The government pleaded with the court to refrain from examining the documents,
which were earlier alleged to have been stolen by someone. The Attorney General
has warned the journalists and lawyers who were using the 'stolen' documents,
with a prosecution under Official Secrets Act. Later the AG clarified that
government had no intention to prosecute journalists or lawyers for this. But he
reiterated that the court cannot examine the stolen documents or documents which
were illegally obtained. Thereafter the AG stated that documents were not stolen
from defence department, but only photocopies of the documents were taken. The
government pleaded that those documents which have already been published in the
media, on the purchase of the Rafale fighter aircraft were unauthorizedly
photocopied from the originals kept in the Ministry of Defence and sneaked into
the public domain. In an affidavit filed on March 13, the government said the
leak was a "conspiracy" to jeopardise national security and friendly relations
with France, the home of Rafale's manufacturer, Dassault Aviation.
The Bench reserved its orders on two preliminary issues — the admissibility of
"stolen" documents as evidence and the claim of privilege raised on them by the
government. Justice Joseph asked Venugopal, "How is it that you decide privilege
protection? Is there a high-level, inter-departmental call taken on this? Can't
the court even examine the documents to decide your claim of privilege?" He
asked what the logic was behind claiming privilege now when the documents were
already in the public domain.
"They have produced it in the public domain after stealing it. The State
documents cannot be published without explicit permission," Venugopal cited
Section 123 of the Evidence Act. Advocate Prashant Bhushan, who is one of the
review petitioners, said, "Documents are already in public domain in public
interest. There is a lot of Supreme Court judgments which hold that public
interest trumps over privilege." He pointed out that the government itself has
filed the Comptroller and Auditor General (CAG) report detailing "10 kinds of
defence purchases, but only the details of the Rafale deal are redacted. Why?
The government note in the Supreme Court in November 2018 said the CAG report
would be redacted. How did the government know then the CAG report would be
redacted?" Bhushan asked.
When the matter was last heard on March 6, Venugopal had submitted that
disclosure of the contents of the Defence Ministry note amounted to an offence
under the Official Secrets Act. It was his contention that such stolen documents
cannot be relied upon by the court unless the source from which the same was
procured is disclosed.
Justice Joseph had, however, expressed his disinclination to go along with that
argument asking the AG, "Can relevant evidence be cut out saying it is illegally
obtained? Whether stolen evidence cannot be looked into if it is relevant?"
Besides placing heavy reliance on Section 123 of the Indian Evidence Act to
contend that the document in question cannot be used in court without the
permission of the concerned officer of the Union government, the AG also
submitted that the document in question can be withheld from disclosure under
the RTI Act.
While Venugopal cited Section 24 of the RTI Act regarding exemption granted to
intelligence and security organisations (from disclosing information), Justice
Joseph adverted to the proviso to the said Section stating that in cases of
corruption and human rights violations, the protection afforded by Section 24
won't be available. In case of corruption and human rights violations, sensitive
organisations will have to disclose information, he said. Justice Joseph also
referred to Section 22 of the RTI Act which states that the RTI Act shall
override the Official Secrets Act and any other law.
Referring to the RTI Act as a piece of legislation which brought about a
"revolution", Justice Joseph underlined the fact that with the ushering in of
RTI jurisprudence, we must look forward when it comes to disclosure of
information and not go back to the earlier stances adopted in this regard. He
also referred to the stand of the Union government in 2009 when it had said that
file notings can be made available under the RTI Act. The AG relied on Section
8(1)(a) of RTI Act, which exempts the information relating to national security.
Then Justice K M Joseph referred to Sections 22, and 24 of that Act, which
provided exemption to exemption which means the information must be given.
Prashant Bhushan contended that the concern of the government was not to protect
national security but to protect the government officials who interfered with
the negotiations in the deal.
Undoubtedly, any information that is in the interest of national security should
not be disclosed. There should not be any scope for enemy to use the information
about Rafale. At the same time, the information which has nothing to do with
'security' but suppressing it to hide the irregularities or corruption cannot be
justified. Security information could be redacted, and rest must be given for
judicial examination. Let us hope that RTI gets a booster dose from the Judicial
Written by: Prof M Sridhar Acharyulu, The writer is former Central
Information Commissioner and Professor of Law, at Bennett University, Greater