-By Sudev Singh
- Introduction – Background of the Controversy
Yashwant Sinha v. Central Bureau of Investigation, more popularly referred to as the Rafale case involved a bundle of petitions, pertaining to the purchase of Rafale Fighter aircrafts by the Indian Government from France. Opposition parties and leaders alleged that the deal entered into by the Government of India was rife with corruption and involved kickbacks to Anil Ambani, a wealthy industrialist.
The Hindu, a leading newspaper, and the Wire, an online news website, had released 3 documents over February 2019.[1] These included an eight-page note written by the Indian Negotiating Team (INT) charged with negotiating the Rafale deal. Two additional Notes, marked ‘Secret’ under the Official Secrets Act, 1923, from the Ministry of Defense were also released. Prior to the publication of the documents by the Hindu, a criminal writ petition alleging corruption had already been filed and dismissed by the Supreme Court in October 2018.[2]
Yashwant Sinha, Arun Shourie, and Prashant Bhushan filed a petition in the Supreme Court alleging impropriety[3]on the part of the Government of India in making the deal, based on these documents.[4] The maintainability of the petition filed by Yashwant Sinha was decided in April 2019, and the case was decided on merits and reviewed in November 2019. Even though the case might not be topical in 2020 amid a global pandemic, the repercussions of the judgment will be felt for a long time to come. The case provides an insight into how the Courts deal with an Executive charged with corruption, how the Courts might compel the Executive to provide evidence against itself, and the contours of citizens’ right to information[5] about the inner workings of an elected Executive.
The case becomes even more important in the context of an increasing trend in the political sphere to refer controversies to the Judiciary, and litigating them in Court as opposed to the domain of popular political discourse. Indicative examples of this include the recent Floor Test controversies,[6] the controversies regarding accusations of high level political corruption as alleged in the Sahara-Birla diaries,[7] and the controversy regarding the removal of the CBI director AlokVerma on the 10th of January, 2019.[8]
2. Rafale Case
Several key issues were brought up in the preliminary objections on the maintainability of the Review Petition in the Supreme Court. The Attorney General of India raised preliminary objections as to the admissibility of the aforementioned documents. It was alleged that the unauthorized removal of the documents from the competent public authority, and reliance placed on them in the petition was in violation of S.3 and S. 5 of the Official Secrets Act, 1923. Additionally, the Attorney General alleged that the documents were exempt from disclosure qua S.8 of the Right to Information Act, 2005,[9] and the Government of India also claimed privilege over the documents qua S. 123 of the Indian Evidence Act, 1872,[10] to prevent their disclosure in the public domain.[11]
Indeed, as is observable, the legislative intent behind all three legislations is on opposite ends of the spectrum. While the Right to Information Act, 2005 in its preamble seeks to “…promote transparency and accountability in the working of every public authority”, the legislative intent behind S. 123 of the Evidence Act, 1872 and the Official Secrets Act as a whole, as evidenced from the strict provisions against the dissemination of state documents, etc, is against the publication of documents about the functioning of the Executive. When seen in such light, the statutes should inevitably be at odds with one another.
However, the majority judgment, delivered by Gogoi, CJ, sidesteps this lacuna by using the fact that the documents in question had already been published in the public domain.[12] Both claims of the government, under S. 123 of the Evidence Act, 1872 and under S.3 and S.5 of the Official Secrets Act, 1923 were rejected on this ground.
Instead, the Majority judgment addresses an issue that the Court was not seized of in the controversy. Gogoi, CJ commends the CBI for not claiming a remedy regarding the publication of the aforementioned documents in The Hindu.[13] The Court then maps the Freedom of the Press under Art. 19(2) of the Constitution of India, and borrows from the jurisprudence under the First Amendment to the Constitution of the United States of America, specifically referring to the Pentagon Paper’s case.[14]The judgment notes that as in the US, the Indian Parliament has not granted the Executive branch any statutory power to injunct any news organization to prohibit the publication of a sensitive document. Such a power not having been granted by the Parliament, the Court cannot grant such a power, as the same would amount to judicial lawmaking.[15]
Discussing the claims of privilege, the Court reiterates the position of law laid down in S.P Gupta v. Union of India[16] ; that the metric on which a claim of privilege is to be determined is ‘public interest’, and to satisfy that the disclosure of the document would or would not jeopardize the same, the Court can inspect the document(s) in question. The power of inspection however has to be utilized sparingly. Finally, the Court rejects the CBI’s plea to not use the documents as evidence, considering their removal had violated the Official Secrets Act. The Court, citing Pooran Mal [17], rejected this claim and upheld the principle of evidence in that the fruit of the poisoned tree may be used in Indian Courts, and the test for evidence in India is one of relevancy, irrespective of the methods through which it is acquired.
The case, however, is a missed opportunity for the Court. While Joseph, J.’s concurring opinion does point towards the question of balancing the provisions and statutes in question, the learned judge does not give a definitive ruling on the question. While he hints towards adopting a position which favors disclosure of documents, pointing towards the proviso S. 24(1) of the RTI Act, 2005,[18] which allows disclosure of documents from intelligence agencies and the like, where corruption or human rights violations are alleged, he does not give a finding on the law. Coupled with this ambiguity, and the opinion being a separate concurring judgment, it does not have the force of law.
3. Mapping the Lacuna
State Privilege: Common Law and Position in India
In common law, Crown Privilege is a doctrine established as a court made right. [19] The Doctrine of Candor is the basis for ‘Crown Privilege’ or ‘State Privilege’ over communications in common law jurisdictions. The premise behind the doctrine is that institutions of government can only operate at their optimal level if there is a free flow of information and advice between government officials. It is then argued that if government officials have to bear the risk of their advice being made public by way of evidence in a court of law, the frankness of this advice would be prejudiced. In effect, this would translate into governmental decisions being made based on inadequate information and advice.[20]
In India, the claim of privilege is based not in judge-made law, but the statute, more specifically, S. 123 and S. 124 of the Indian Evidence Act, 1872. At the heart of the provisions, is the consideration of public interest.[21] The law laid down in SP Gupta calls upon the court to balance two different kinds of public interest, firstly the need for openness and transparency in government,[22] and secondly that whether the disclosure of the documents in question would be to the detriment of the executive branch. However, in SP Gupta, the Court recognizes settled law,[23] that this balancing of public interest only takes place when the documents over which privilege is claimed is one which is not privileged due to its class.[24]
Thus the Apex Court has recognized a distinction in documents covered under S.123, S.124, and S.162 of the Indian Evidence Act, 1872. Documents are divided into Privileged due to their Character and Privileged due to their Class. Examples of the latter include Cabinet minutes, minutes of discussions between heads of departments, high-level interdepartmental communications, and dispatches from ambassadors abroad.[25][26]If the State gives an affidavit from the Head of the Department that the documents fell into the second category, the court would not inspect them but may enquire into the reasoning given. If the documents fell into the first category, i.e. Privileged due to their Character, the Court may exercise its power to inspect the document. This distinction derives from Art. 74(2) of the Constitution of India which provides ;
“(2) The question whether any and if so what, the advice was tendered by Ministers to the President shall not be inquired into in any court”.
A Right to Information
Having discussed the first leg of the controversy in the Rafale case, we can now turn to the statute with the competing interest from that of S. 123, S.124, and S. 162 of the Indian Evidence Act, 1872. The Preamble of the Right to Information Act, 2005 states that the purpose of the act is “to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority”. Due to the Non-Obstante Clause in S.22 of the statute, the RTI Act is widely regarded as a revolution. S.22 of the Act provides that the statute shall have an overriding effect notwithstanding any provisions of the Official Secrets Act, 1923 or any other legislation. The effect of this provision is manifest; all provisions of other statutes dealing with disclosure of Governmental information which deviate from the scheme laid down in the Right to Information Act, are either interpreted harmoniously with the Act, and if the same is not possible, the provisions of the RTI Act occupy the field.[27]
The contours of what information cannot be provided to a citizen are provided under S. 8(1) of the Act;[28]
“8. Exemption from disclosure of information. – (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
Additionally, S. 9 of the RTI Act provides for non-disclosure where such disclosure would result in a breach of contract.
While the contours so placed are general definitions, the court has repeatedly interpreted them in a restricted manner. In RBI v. Jayantilal Mistry, the apex court distinguished about the types of information protected against disclosure under S. 8(1) (e) of the RTI Act. [29] The court calls the non-disclosure provision an ‘exception’ to the general scheme of the RTI act.[30] In the context of S. 8(1) (j), the Apex Court has lowered the threshold for disclosure under S. 8(2) by allowing disclosure when there is nexus with any public activity.[31] In 2012, in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizvi, the Apex Court says that the exceptions to disclosure must be construed in a strict sense. [32]
It is also important to note for the present controversy that S. 24 of the Act removes from the purview of Public Authorities certain organizations. It provides for an exemption to certain security and intelligence under Schedule 2 of the Act, such as the Intelligence Bureau and Narcotics Control Bureau.[33]However, the proviso to S. 24(1) allows disclosure of information “pertaining to allegations of corruption and human rights violations”.
[1]YashwantSinha v CBI, (2019) 6 SCC 1, Para 4 on 13
[2]ManoharLal Sharma v. NarendraDamodardasModi, Writ Petition (Criminal) No. 225 of 2018
[3] Supra 2
[4] Supra 2, Para 1
[5]Under Art. 19(1) (a) of the Constitution of India, as established in Ministry of Information and Broadcasting v Cricket Association of West Bengal, AIR 1995 SC 1236
[6]Madhya Pradesh :Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly, 2020 SCC OnLine 363, Karnataka : SrimanthBalasahebPatil and Ors. v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595
[7]Common Cause v Union of India, Writ Petition (Civil) No. 505 of 2015
[8]Alok Kumar Verma v. Union of India, Writ Petition (Civil) No. 1309 of 2018
[9] Supra 2, Para 2
[10] Supra 2, Para 2
[11] Supra 2, Para 2 on 10
[12]Supra 2, Para 8 and 9
[13]Supra 2, Para 5
[14]New York Times Co. v. United States 1977 SCC OnLine US SC 147
[15]Supra 2, Para 7
[16]AIR 1982 SC 149
[17]Pooran Mal v. Director of Inspection(1974) 1 SCC 345
[18]Supra 2, Para 43
[19]Mauro Cappelletti & C.J. Jr. Golden, Crown Privilege and Executive Privilege: A British Response to an American Controversy, 25 Stan. L. Rev. 836 (1973).
[20]Wallace, Mark S. “Discovery of Government Documents and the Official Information Privilege.” Columbia Law Review, vol. 76, no. 1, 1976, pp. 142–174. JSTOR, http://www.jstor.org/stable/1121621.
[21]Supra 16, Para 1995
[22]The Court argues that there is an inherent benefit in the release of government documents in a democratic society, Supra 16, Para 75
[23]Uttar Pradesh v. Raj Narain1975 AIR 865
[24]Supra 19, Para 25 and 41
[25]Supra 16, Para 70 and 71
[26]While recent political and legislative trends world over have argued for increasing transparency, secrecy as to these categories is beneficial. Cabinet and high level interdepartmental secrecy promotes frank and candid discussion at the highest echelons of government protects the efficiency of the collective decision making process and enables Ministers to put up a united front in public, irrespective of private disagreements on specific policy issues. Ambassadorial dispatches often contain sensitive information as to the political, economic and social conditions in a state, and how they may be used to the benefit, or are in the detriment of their Country. They may also contain details of intelligence operations and allied information. For a detailed discussion on the need for Cabinet Secrecy, See :Campagnolo, Yan, The Political Legitimacy of Cabinet Secrecy (November 15, 2017). Revue juridiqueThémis de l’Université de Montréal, Vol. 51, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=3184378
[27]Namit Sharma v. Union of India, (2013) 1 SCC 745, Para 79.
[28]S. 8(1) of the Right to Information Act, 2005
[29]Reserve Bank of India v JayantilalMistry 2015 SCC Online SC 1326
[30] Supra 27, Para 64
[31]Canara Bank v C.S. Shyam 2017 SCC Online SC 1023
[32] Civil Appeal No. 9052 of 2012,Para 12
[33]Schedule 2 of the Right to Information Act, 2005
[The author is a fourth year student at West Bengal National University of Juridical Sciences, Kolkata.]