Decks cleared for intense scrutiny of Rafale deal

The Supreme Court’s three-Judge bench, on April 10, cleared the decks for an intense scrutiny of the controversial Rafale deal, involving India’s acquisition of 36 fighter jets from Dassault Aviation, France.  The bench of Chief Justice of India Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph, unanimously held that Centre’s preliminary objections against hearing the review petitions were not valid. The review petitions were filed after the bench dismissed on December 14 last year the plea for an impartial probe into allegations of irregularities in decision-making, pricing and selection of offset partners. The bench’s rejection of the plea on the basis of a sealed envelope submitted by the Centre disappointed the petitioners, who alleged that the Centre had suppressed crucial information and, therefore, misled the court.

On February 21, the court agreed to hear the review petition filed by former Union Ministers Yashwant Sinha and Arun Shourie and the lawyer Prashant Bhushan.  The Centre objected to the hearing of the review petition because it relied on certain leaked documents considered as official secret. After initially calling these documents “stolen”, Attorney General K.K. Venugopal later corrected himself by calling them “unauthorisedly obtained”.  He also objected to the hearing of the case because it involved official secrecy and national security.

The bench, on April 10, considered the relevance of three such documents published in The Hindu with detailed commentary by N. Ram, over which the Centre had claimed privilege and therefore justified its non-disclosure under the Indian Evidence Act. They include an eight-page note written by three members of the Indian Negotiating Team dated June 1, 2016, Note-18 of the Ministry of Defence, and Note-10 written by S.K. Sharma (Deputy Secretary, Ministry of Defence, Air-III) dated November 24, 2015.

The CJI wrote the lead judgment on behalf of himself and Justice S.K. Kaul, while Justice K.M. Joseph wrote a separate but concurring judgment. The judges wondered how the Centre could claim privilege over documents which were already in the public domain, as the Evidence Act could come to its rescue only if the documents remained unpublished.   Pointing out that the Centre did not doubt the veracity of these documents, the judges emphasised that they could be considered relevant for the purpose of hearing the review petitions.

The two judgments are significant for their robust defence of the freedom of the press by reproducing a long line of judgments from both the Indian Supreme Court and courts of other jurisdictions. “No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in The Hindu newspaper,” read the judgment of CJI Ranjan Gogoi and Justice S.K. Kaul. Although the bench acknowledged that the Centre did not dispute the media’s right to publish the documents, it went on cite the consistent views of the court upholding the freedom of the press in a long line of decisions.  The bench did so because it found the occasion “appropriate” to recall those previous judgments. 

The bench also cited the U.S. Supreme Court’s decision in New York Times Company vs United States (1971), wherein Justice Thurgood Marshall refused to recognise a right in the executive government to seek a restraint order on the publication of the “Pentagon Papers” primarily on the ground that the First Amendment in the U.S. guaranteed freedom of the press. The Supreme Court drew on the analogy with the U.S. although the Centre did not seek a restraint order itself on the publication of the documents in The Hindu and by other media outlets such as TheCaravan and The Wire. 

The court appeared to have cited the U.S. precedent because during the hearing the Centre hinted that newspapers that published these documents might be guilty of violating the Official Secrets Act. The court appeared to have pre-empted such a plea from the Centre by suggesting that the sacred doctrine of separation of powers could come in the way if the Centre sought its intervention to restrain the media from publishing these documents under the cover of secrecy or national security. In this celebrated case, Justice Marshall argued that the term “national security” was too broad to legitimise prior restraint and that it was not the court’s job to create laws where Congress had not spoken.

The fact that these documents were already in the public domain also made it easy for the court to question the Centre’s attempt to seek protection of these documents from disclosure under Section 8(1)(a) of the Right to Information Act. Interestingly, CJI Gogoi and Justice Kaul relied on the landmark judgment in the Kesavananda Bharati case to answer the Attorney General’s fears that the hearing of the review petitions could endanger national security of citizens. The judges emphasised that they are expected to arrive at their decisions in the calm and dispassionate atmosphere of the court room, keeping away from the din and controversy of politics outside, in order to uphold the Constitution and the laws without fear or favour, uninfluenced by any political ideology or economic theory.

Justice Joseph went a step further and underlined the linkage between human rights and a corruption-free administration in a democracy. He also echoed the concern that in some sections of the media there was a disturbing trend of bias caused by “controlling business interests and political allegiances” eroding dispassionate and impartial purveying of information. He reproduced a paragraph from the veteran journalist the late Kuldip Nayar’s book Beyond the Lines , in which he lamented the sacrifice of editorial primacy at the altar of commercialism and vested interests. He quoted Nayar as saying, “It hurts to see many journalists bending backwards to remain handmaidens of the proprietors, on the one hand, and of the establishment, on the other.”

Apart from relevance, Justice Joseph also invoked the ground of public interest to justify consideration of documents that the Centre alleged were “unauthorisedly” obtained by the newspapers and the petitioners.