-By Sudev Singh
This is the second part of a two-part series. In the first part the author throws light on the case of Yashwant Sinha v. Central Bureau of Investigation, more popularly referred to as the Rafale case. An attempt has been made to highlight the importance of this case 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. The earlier link can be accessed from here.
Balancing the Statutes
What is clear from the discussion on the law of Privilege and the Right to Information Act, 2005, is that the two statutes serve opposite ends of the public interest spectrum. It is pertinent to note that while exceptions and the test of public interest under S.123 and S.124 of the Evidence Act have been laid down by the Apex Court in Raj Narain[1]and SP Gupta[2], the cases were decided by the Court decades before the passage of the Right to Information Act.
It is important to note that the test of Public Interest itself is a part of the decision to disclose under the Right to Information Act, 2005.[3]However, I argue that through listing certain specific types of information which are barred from disclosure, the Legislature has identified certain areas of public interest that are worthy of protection from disclosure to the general public. These restrictions under S. 8(1), S.9, and S. 24 of the Right to Information Act provide us the general contours of the protected areas of public interest. These protected areas can inform the test of Public Interest under Claims of Privilege for documents privileged due to their character. However, their incorporation into the test of Public Interest under claims of privilege must be limited to balancing solely the benefits or demerits of the publication aspect of the calculus. As I argue below, the Public Interest test as construed by Courts in India has limited itself only to the disclosure calculus. In order to make the test more effective, another principle must be weighed in.
What must be taken into account is that the Public Interest test under Claims of Privilege, unlike the test under S. 8(2) of the Right to Information Act, must also account for the interest of the public to ensure effective administration of justice. The potential for injury to the administration of justice, the foundation of which is the effective aggregation of evidence, so that petitioners may be able to build their case in the most effective way, must be a large consideration for courts, especially in criminal controversies. This consideration becomes even more important when we consider criminal controversies that involve government wrongdoing, such as corruption.[4] While the public interest concerning the administration of justice is repeatedly referred to in leading cases on Claims of Privilege, the principle is not weighed at parity with or given nearly enough importance as the public interest, in disclosure of government documents to the general public or the interest of the functioning of the executive branch.
This phenomenon can see be mapped in several leading cases on the issue and far more relevant cases. As discussed above SP Gupta[5] and Raj Narain[6], while addressing the needs and importance of the administration of justice, do not incorporate the same into the Public Interest Test. The repercussions have been manifest in contemporary cases brought before the Court.
In PUCL v. Union of India[7], the petitioners sought information regarding lapses of security and disposal procedures of the Atomic power plant at Tarapur, Maharashtra, based on several news reports and testimonials by locals. The petitioners prayed for the same on the basis of a notification under S.18(1) of the Atomic Energy Act, 1962. The respondents contended that the report was classified ‘Secret’ under the Official Secrets Act, and thus claimed privilege under S. 123. The Court reiterated the position of law laid down in Raj Naraian and S.P Gupta, and refused to use their discretion to inspect the report, even though there was an offer by the Attorney General to furnish it to the Court under sealed Cover.
While this case might be a singular example, and the arguments against generalizing on the basis of one case are several, I would argue such a case might be the perfect way to demonstrate the failing of the Public Interest test for Claims of Privilege. Undoubtedly, the documents on safety procedures are important for the state to protect its military and technological interests. However, the possible injury to the residents of Tarapur was unfathomable. Addressing the waste disposal aspect first, any improper leakages in radiation at the plant could have lead to an immense spike in cases of Cancer, not for just the current generation but for generations to come.[8] The safety feature issues would have had effects so immense on the area that it would have been uninhabitable for centuries.[9] While the Court upheld the Claim of Privilege in 2004, in 2011 the Atomic Energy Regulatory Board report pointed to deep preexisting flaws in the design and safety protocols at the reactors. It was found that the reactors were susceptible to a Fukushima Daichi type accident, and did not even have proper seismic sensors.
While of course, it would be improper and imprudent to lay the entirety of the blame for coming so close to the precipice on the Apex Court, the preponderance of only the technological and military protection interests into disclosure weighed in the outcome of the litigation. The Court was unable to even inspect the documents, much rather review the practices going on in Tarapur. The inability to pass suitable orders due to the unavailability of required evidence of current reactor practices was a grave miscarriage of the public justice machinery. In this case, the disclosure component of the Public Interest Test at the heart of the Claim of Privilege potentially resulted in nuclear catastrophe.
A Test for The Courts
If the current position is untenable, a correct indication can be provided along the lines of the ‘Executive Privilege Doctrine’ prevalent in the United States. The doctrine broadly pertains to what documents and evidence must be turned over to the Judicial Branch during a trial. Executive Privilege is not a doctrine found in the American Constitution, but is seen as an extension of the doctrine of separation of powers.[10] The landmark case on the subject is United States v Nixon[11]. The decision established a legal duty on the Executive to furnish evidence relevant to a criminal proceeding, even conversations between the President and his closest advisors.
In United States v. Nixon a few points of law, relevant to the Indian context are clarified. Consistent with the Indian approach, the Supreme Court of the United States holds that the final arbiter of the Claim of Privilege is a Court.[12] Secondly, the principle of Administration of Justice is given predominance over the Doctrine of Candor;
“The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts”[13]
Thirdly, the Court rejects a generalized Claim of Privilege over the specific need of evidence for a criminal trial. Put in an Indian context, that would mean out of the two categories created in SP Gupta[14],vis Privilege over classes of Documents and Privilege over Specific Documents, the first category would not stand. While due to the explicit nature of Art 74(2) of the Constitution, that position is not wholly tenable, relying on a strict interpretation in accordance with the need of administration of justice, only Cabinet Papers could be exempt for furnishing as evidence.
While the second category of documents, viz. specific claims of privilege is not referred to explicitly in the United States v. Nixon, Chief Justice Burger writes that unless a demonstrable interest of diplomatic and military security is shown, a Claim of Privilege would not be tenable.[15]
Borrowing from the US approach, and keeping in mind the differential conflict between the RTI Act and S. 123 & S.124, the standard in India should be changed. The correct proposition of law in India should be as follows:
- Classes of Documents would not be exempt from production as Evidence under S.123 and S. 124 of the Indian Evidence Act, 1872, apart from Cabinet Papers and Documents as specified in Art. 74(2) of the Constitution of India
- Specific documents could be exempt, if a demonstrable interest of Diplomatic and Military security is proven
- The final arbiter of Claims of Privilege under S. 123 and S. 124 of the Indian Evidence Act, 1872 would be the Court.
With respect to point (2) stated above, the standard laid down is higher than the standard laid down for exemption from disclosure under S. 8(1) under the RTI Act. This has been done keeping in mind that the needs of the administration of justice are as stronger claim against the doctrine of candor over the needs of transparency. Chief Justice Burger writes :
“The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”[16]
The propositions laid down above are even more important when the Executive itself is the subject of litigation, as it was in the Rafale case. The Rafale Case was an opportunity for the Apex Court to bring about changes in the position of law, however, it was squandered.
Conclusion
As demonstrated above, there exists a serious lacuna with respect to the Law of Privilege in India post the passage of the Right to Information Act, 2005. While both have at their heart, a preponderance of Public Interests, the calculus of the same has thus far only rested between the interest of disclosure in the light of a democratic government, and the injury which might befall the executive if the disclosure is made. The interests of the administration of justice thus far have not been given the preponderance that they deserve. Addressing the same, the court can adopt a new approach, made necessary by the revolution begotten by the Right to Information Act. The Rafale case in that light presented an opportunity for the Court to bring about a harmonious reading of the law on State Privilege, and the Right to Information Act, 2005. Unfortunately, this opportunity was squandered by the Supreme Court. Both the issue of State Privilege under the Evidence Act, 1872, and the issues related to S.3 and S.5 of the Official Secrets Act, 1902 were sidestepped by the Court using the factum of publication of the documents in various news channels. Considering the question of privilege strikes at the heart of the Separation of Powers, the Court ought to have waded into the political controversy of the case. It is to be seen when such an opportunity may be presented again, and how, considering the political stakes of such situations, the Apex Court may react.
[1] Supra 23
[2] Supra 16
[3]S. 8(2) of RTI Act
[4]Leslie Palmier (2000) Corruption and probity, Asian Journal of Political Science, 8:1, 1,12, DOI: 10.1080/02185370008434156
[5] Supra 19
[6] Supra 26
[7] (2004) 2 SCC 476
[8]Gofman, John W. Radiation and human health. San Francisco: Sierra Club Books, 1981, 787.
[9] Peterson, Per; William Kastenberg; Michael Corradini. “Nuclear Waste and the Distant Future”. Issues in Science and Technology. Washington, DC: National Academy of Sciences (Summer 2006).
[10] Chief Justice Burger, United States v Nixon418 U.S. 683
[11]United States v Nixon418 U.S. 683
[12] Supra 44, P 683
[13] Supra 44 , P707
[14] Ibid 40
[15] Supra 44, P 704
[16] Supra 44, P. 709
[The author is a fourth year student at West Bengal National University of Juridical Sciences, Kolkata.]