Rafale deal in apex court: Just an academic exercise

Shorn of verbosity and pedantry, the two judgments delivered challenging the dismissal of the PILs in the Rafale judgment protect whistle-blowers and journalists who use questionable methods to extract top-secret documents pertaining to defence deals such as the purchase of 126 fighter jets for India from France.

Whether these top-secret documents were obtained by bribing or coercing officials who had access to these documents is not relevant, provided the benefit accruing to the public by disclosure of these documents is more than the damage caused to the state by leaking these “secret documents,” copied from inside the defence ministry and published in a national newspaper in February.

Chief Justice of India (CJI) Ranjan Gogoi unequivocally dismissed the objections raised by attorney-general K K Venugopal that the review petitions challenging the dismissal of the PILs lacked bona fides because three documents were “unauthorisedly removed from the office of the defence ministry of the government of India and were appended to the review petition and relied upon by the review petitioners.”

These three documents :
(a) An eight-page note written by three members of the Indian Negotiating Team charged with price negotiation for the Rafale Deal. This note was dated 01.06.2016.
(b) A second note of the defence ministry marked secret under the Official Secrets Act.
(c) A third note written by S K Sharma who was the deputy secretary in the defence ministry dated 24.11.2015 and also marked secret under the Official Secrets Act.

Conforming to the average judgment of the average Supreme judge, Justice K M Joseph’s concurring judgment which agreed with CJI Ranjan Gogoi refusing the plea of privilege by the state contains convoluted sentences, making his judgment seem full of pedantry and erudition as he extracts the kernel of judgments from the U.S. Supreme Court to reiterate the state cannot claim privilege or refuse to produce secret documents which will defeat the administration of justice.

But there is nothing new in this because these principles were laid down by the US Supreme Court as far back as 1971 in what was known as the Pentagon Papers case. In the Indian context, this means two antagonistic laws such as the Official Secrets Act and section 123 of the Indian Evidence Act (allowing the state to claim privilege) cannot thwart the citizen from accessing secret documents when public interest is paramount.

This is already well-settled law in the western democracies and India has taken decades to recognize this axiom. What would be more interesting is whether the Supreme Court will allow the deliberations of its collegium to become public so the country is allowed to learn why judges such as K M Joseph were superceded by his juniors like Justice Indu Malhotra.

Justice Indu Malhotra was the first woman judge to be directly elevated from the bar to the bench which roused the ire of the Supreme Court lawyers who sought deferment of her swearing-in ceremony until Justice Joseph took the oath. But this plea was dismissed by the former CJI Dipak Misra who took umbrage when senior advocate Indira Jaisingh sought postponement of the swearing-in ceremony.

When the Narendra Modi government did not clear the name of Justice Joseph for elevation to the Supreme Court, the then senior most member of the collegium, Justice Jasti Chelameshwar wrote a strongly-worded note reiterating that Justice Joseph was a judge of impeccable integrity whose merit outshone that of chief justices and judges senior to him.

There is no doubt that Justice Joseph is erudite but his judgments, though verbose and convoluted, are liberal. His concurring judgment, agreeing with the order of his CJI Ranjan Gogoi who dismissed the claim for privilege or exemption from production of confidential documents sermonises the media for being biased because of business and political compulsions. Quite rightly, he laments deterioration of media ethics due to commercial and political interests.

However, the learned judge does not suggest a remedy just as there is no remedy for executive interference in judicial independence. Justice Joseph only adds to CJI Gogoi’s observations when he observed that “judicial review is not intended to create what is sometimes called judicial oligarchy, the aristocracy of the robe, covert legislation, or judge-made law.

The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena.”Wisely and in consonance with the canons of democracy, CJI Gogoi dimissed the argument that state privilege could be used to thwart access to documents. As Justice Joseph observed in his convoluted thesis, the court has to determine whether the documents relate to affairs of the state and whether their disclosure would injure the public interest.

The court has to balance two competing aspects of public interest, because if the document relates to affairs of the State, its disclosure would damage the unimpeded working of its public authorities.  For example, disclosure of the names of overseas agents of the Research and Analysis Wing (RAW) would jeopardise state security as would details of India’s nuclear capabilities.

But the converse factor which has to be examined is whether justice delivery would be thwarted by withholding material documents from the court by claiming privilege. There are two aspects of public interest clashing with each other out of which the court has to decide which predominates.

The unenviable task before the court is to decide
which aspect of the public interest predominates or whether the document should be furnished to the court for justice to be delivered or state security overrides public interest. If the court opines disclosure of the document would cause greater injury to public interest than its non-disclosure, the court will not allow the document to be disclosed but if the court finds the balance between competing public interests lies in disclosure of the document, the court will order its production.

This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to any class of documents.

On 14 December 2018, the court dismissed all petitions seeking a probe into the alleged irregularities in the Rafale deal, and gave a clean chit to the Union government on the decision making, pricing and selection of the Indian partner for manufacturing the Rafale jets. The Supreme Court said it had was satisfied with the decision-making process of the government, and it found no evidence of wrongdoing.

This means that the review petitions challenging the dismissal of the PILs in the manufacture of the Rafale fighter jets for the Indian Air Force are merely an academic exercise with the Supreme Court unlikely to make drastic changes in its judgment dismissing the earlier PILs.

Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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