Rafale Deal Case: RTI Overrides Official Secrets Act, Says Supreme Court

A bench headed by CJI Ranjan Gogoi asked the petitioners seeking a review of its order to focus on the preliminary objections regarding the admissibility of the leaked documents.

New Delhi: While hearing the review petition filed in the Rafale deal case, the Supreme Court on Thursday said that the Right to Information Act, 2005 revolutionised governance in India, and trumps the Official Secrets Act (OSA).

These comments were made by Justice K.M. Joseph. The bench also comprises Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul.

According to The Hindu, Justice Joseph made Attorney General K.K. Venugopal – who had argued on behalf of the Centre that certain documents on the deal were ‘stolen’ and people should be charged under the OSA – to read out sections of the RTI Act. The three sections read out pertained to the RTI having an “overriding effect” over the OSA (22), even security and intelligence outfits having to disclose information on corruption and human rights (24), and the government’s duty to reveal details that are in “public interest” (8(2)).

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“The RTI Act brought a revolution. In 2009, your own government said file notings can be made available under the RTI. Let us not go back now,” the bench said.

The apex court said on Thursday that it will first decide on the preliminary objections raised by the Centre that the documents on which it was claiming “privilege” cannot be relied upon to re-examine the verdict in the Rafale fighter jet deal with France.

“Only after we decide the preliminary objection raised by the Centre, we will go into other aspect of the review petitions,” said the bench headed by CJI Gogoi.

The Centre’s argument

At the outset, the AG had claimed privilege over documents pertaining to the Rafale fighter jet deal with France and said those documents cannot be considered in evidence as per Section 123 of the Indian Evidence Act.

He contended that no one can produce them in the court without the permission of the department concerned as those documents are also protected under the OSA and their disclosure is exempted under the RTI Act, as per Section 8(1)(a).

The Centre objected to the admissibility of those documents annexed by former Union ministers Yashwant Sinha and Arun Shourie and activist lawyer Prashant Bhushan in their review petition against the apex court’s December 14 judgement dismissing all petitions against the Rafale jet deal.

Bhushan said the Centre’s objections were “mala fide and totally untenable arguments”.

The bench said that “argument on the preliminary issue and the claim of privilege raised by the Government of India is reserved”.

It noted further that according to the AG’s submissions “there are three Rafale documents whose publication comes under Official Secrets Act, 1923. These documents were unauthorisedly published. You claim privilege under section 123 of Evidence Act. You want us to adjudicate and strike down the review on this basis”.

Former Union ministers Arun Shourie and Yashwant Sinha with senior advocate Prashant Bhushan in New Delhi on September 11, 2018. Credit: PTI/Subhav Shukla

The petitioners’ response

After Venugopal’s submission, the bench told Bhushan, who was appearing for Sinha, Shourie and himself, that he has the right to reply in writing to the affidavit filed by the Centre on Wednesday.

However, Bhushan said he did not think that there was a need to reply in writing and submitted a note countering the preliminary objections raised by the centre on maintainability of the review petitions, stating that “preliminary objection are mala fide and totally untenable arguments”.

He said government cannot claim privilege over the documents which are already published and is in public domain.

He said that Section 123 Indian Evidence Act only protected “unpublished documents”.

While the Centre was making submission that the documents can be withheld from disclosure under the RTI Act in view of the national security, the bench had made its comments about the RTI Act’s supremacy.

Shourie submitted that he was thankful to the Centre and the AG for saying in their affidavit that these are photocopies, proving the genuineness of these documents.

Bhushan asked why the government didn’t lodge an FIR when these ‘secret’ documents started coming out in November 2018. “How can they question leaks when they themselves leaked a document containing notings by the then raksha mantri?” Bhushan contended.

He further said that the government has itself filed a detailed CAG report regarding as many as 10 defence purchases and it is untenable on their part to now claim privilege.

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“Rafale is the only case where they redacted pricing details,” he said, and countered the preliminary objections raised by the Centre on previous orders of the apex court in the 2G spectrum scam and coal block allocation scam that it is not mandatory to disclose the source in the matter of public interest.

He also cited Pentagon Papers case of the US, in which a question had arisen as to whether defence documents relating to the Vietnam war could be published, saying that the US Supreme Court rejected the claim of national security.

He also said the Press Council of India Act provides provisions for protecting sources of journalists.

Senior advocate Vikas Singh, appearing for another petitioner Vineet Dhanda, said that the government cannot claim privilege on these documents.

(With PTI inputs)