read the plain english of Justice KM Joseph' opinion here

Plain English: Rafale Review Judgment on Classified Documents - CJI Gogoi's Opinion

On 10th April, a 3 Judge Bench of the Supreme Court pronounced judgment on the question of whether classified documents relied upon by the review petitioners can be placed on the Court's record. The Bench comprising Chief Justice Ranjan Gogoi, Justices SK Kaul and KM Joseph dismissed the Centre's objection. The Centre had objected to placing the documents on the record.

 

Chief Justice Gogoi wrote the lead opinion for himself and Justice SK Kaul, while Justice KM Joseph gave a separate, concurring opinion.

 

The review petitions challenging the 14th December Rafale judgment will now be heard on merits. Recall that the same Bench had delivered the 14th December judgment, which dismissed an enquiry into the Rafale deal. Then, during the review hearings in March, Attorney General KK Venugopal had objected to review petitioners' reliance on certain documents, on the ground that they were critical to national security and were illegally procured. He had further reiterated that the documents are protected under the Official Secrets Act and requested the Court to remove them from the record. He had also argued that for national security documents falling under the Official Secrets Act, any disclosure can be withheld even under the RTI Act.

 

CHIEF JUSTICE GOGOI'S OPINION (on behalf of himself and Justice SK Kaul)

The Court began by recounting the government's objection that 3 documents were unauthorisedly obtained from Ministry of Defense and the Court should not place on record as evidence in deciding the Review petitions. ­ The three documents in question are:-

  1. An eight-page note written by 3 members of Indian Negotiating Team (INT) in reference to the Rafale Deal (note dated 1.06.2016)
  2. Note- 18 of the Ministry of Defense
  3. Note -10 written by SK Sharma

 

The Hindu, a national daily published the three documents on different days in February.

 

The Union made three arguments for dismissing any reliance of these documents.

  • Publication of documents violates Sections 3 and 5 of the Official Secrets Act, 1923. Section 3 penalizes spying and Section 5 penalizes a person who has access to secret documents and gives it to an unauthorized person.
  • The documents cannot be accessed under the RTI Act in view of Section 8(1)(a) of the Act that reads that there shall be no obligation to give to any citizen information disclosure of which would affect the sovereignty and integrity of the nation, among other things.
  • Relying on the documents as evidence violates Section 123 of the Indian Evidence Act, 1872. It prohibits anyone from giving any evidence derived from unpublished official records relating to any affairs of the State except with permission of the Department head.

 

Chief Justice Gogoi held that right to publish these documents by the Press falls within their right to freedom of speech and expression and is not restricted under any grounds mentioned in Article 19(2) of the Constitution. Reiterating the importance of the freedom of the press for sustaining a liberal democracy, he referenced Indian Express Newspapers (Bombay) Private Limited v. UOI, where Jawahar Lal Nehru was quoted as saying in another context “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press”. Chief Justice Gogoi made it clear that freedom of speech cannot be curtailed on ground of public interst as it is not one of the reasonable restriction grounds under Article 19(2) of the Constitution. 

 

Next, he referred to 'Pentagon Papers' where the Supreme Court of the Untited States, in New York Times Company v. United States, by a 6:3 verdict refused to impose a restraining order on the publication of Pentagon Papers on request of the Executive. 

 

Chief Justice Gogoi observed that the same principle of not restricting the publication on the Executive's request is to be applied in the present case.  He categorically observed that “ there is no provision in the Official Secrets Act and no such provision in any other statute that has been brought to our notice by which Parliament has vested any power in the executive arm of the government to restrain publication of the documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.”

 

Next, he addressed the government’s contention that the documents are privileged documents, which cannot be relied upon as evidence under Section 123 of the Indian Evidence Act (IEA). Chief Justice Gogoi outrightly rejected the contention on the ground that Section 123 of IEA applies to unpublished documents and as the said documents were already in public domain, the Court is not barred from relying upon them as evidence. Moving beyond the instant case, he referred to SP Gupta v. UOI to hold that that even in case of an unpublished document, the question of placing on evidence on the record under Section 123 of IEA will be determined by the Court after it assesses the nature of document. Thus, he rejected the claim that there is an absolute bar on the Court from inspecting documents that are claimed as being privileged under Section 123 of IEA.

 

He also refuted the government's claim that improperly obtained evidence cannot be relied upon by the Court. Justice Gogoi referred to Pooran Mal v. Director of Inspection (Investigation) of Income Tax, New Delhi, where the court held that the “test of admissibility lies in its relevancy” unless there is an express or implied prohibition in the Constitution or a law that evidence obtained as a result of illegal search or seizure is not admissible. He said that there is nothing in law or the Constitution that prevents the Court from looking into improperly obtained evidence.

 

Chief Justice Gogoi rejected the claim that there lies an omnibus prohibition on the disclosure of documents falling under the Official Secrets Act. He said that the public authority acting under Section 8(2) of the RTI Act has to make a judgment if public interest in disclosure outweighs the harm sought to be avoided by protecting documents under the OSA or exempting them from disclosure under section 8(1)(a) of RTI Act. He emphasised that as the documents are already in public domain, no public interest is served by prohibiting further disclosure under the RTI Act.

 

Lastly, the Court came down heavily on a line of argument taken by AG KK Venugopal where he had suggested that the court in continuing to hear the matter has the potential to threaten the lives of each and every citizen and had sought dismissal in light of public policy considerations. In response, the Court reproduced the observations of Justice HR Khanna in Kesavananda Bharti v. State of Kerala where he had said “ 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 the fluctuating fortunes of rival political parties can have for them only academic interest”.

 

Thus, the Court dismissed the preliminary objections raised by the Union. The Union had argued that 3 sets of document being relied upon by the review petitioners should not be placed on the record. The Court placed the documents on the record and held that the review petitions would be heard on merit by looking into them.