The Rafale deal initially to purchase of 126 fighter aircraft, in line with the procedure set out in the DPP was concluded with purchasing  18 aircraft from abroad in ‘fly-away’ condition, while 108 would be manufactured in India by Hindustan Aeronautics Limited (HAL) via a ‘transfer of technology’ from a foreign company. The judgment suffered from many defects like Anil Ambani-owned Reliance was confused with Mukesh Ambani-owned RIL, the publication of a report in newspaper was violative of the Official Secret Act and Sec 123 IEA to name some.

By: Anukriti Mathur

Bench: CJI  Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K.M. Joseph.

Facts of the Case:

• The case concerned three documents that provided evidence in the political controversy surrounding the Rafale arms deal: a 7.8 billion euro weapons deal to purchase 36 Rafale fighter planes from France.
• The controversy arose after the Indian prime minister announced a decision during a 2015 visit to Paris to purchase the planes, manufactured by Dassault Aviation. 
• India had been negotiating the sale of fighter planes since 2007. Questions subsequently arose about the Indian Prime Minister’s approval of the purchase at such a high cost. Experts at India’s defense ministry had previously estimated that the deal should cost 5.2 billion euros.
• The Indian opposition accused Mr. Modi of bypassing procedures for defense acquisitions, burdening public funds, compromising national security, using the deal to offer a lucrative contract to an ally, and covering up corruption by refusing to disclose the pricing details. 

On December 15, 2018, the Indian Supreme Court held that there was no occasion to doubt the decision-making process of the Modi government and dismissed all the petitions seeking a review of the decision via a CBI investigation. 

• On January 2, 2019, ministers Yashwant Sinha, Arun Shourie and advocate Prashant Hushan appealed to the Supreme Court to review the Rafale verdict. 
• On March 6, 2019, the CBI informed the Supreme Court that documents relating to the Rafale deal had been stolen from the Defence Ministry. The CBI also threatened The Hindu newspaper under the Official Secrets Act for publishing articles based on the stolen documents. 
• The Respondents argued that these documents were removed from the office of the Ministry of Defence without authority and raised a preliminary objection regarding the maintainability of the review petition questioning the validity of placing these documents on record. 

Contentions

Petitioners:

The review petition by Prashant Bhushan, Yashwant Sinha & Arun Shourie has challenged the judgment on various grounds. 

1. The judgment does not deal with the petitioner’s prayer for the registration of an FIR and an investigation by the CBI. 
2. CAG has not audited the report which leads to substantial misleading of the Court 
3. The judgment confuses Mukesh Ambani’s Reliance Industries with Anil Ambani’s Reliance Infrastructure
4. Judgment erred in not accounting for objections from INT [Indian Negotiation Team] to increase ‘benchmark price’ from 5.2 billion to 8.2 billion euros.
5. As reported by various newspapers &magazines,  there were strong objections from within the INT in how PMO was interfering in negotiation.  However, the Government failed to disclose these objections from the INT Committee to the Court.

Respondents :

1. The unauthorized removal of the three documents from the Indian Defence Ministry and their use to support the petitioners’ pleas in the review petition violated Sections 3 and 5 of the Official Secrets Act, 1923. Section 3 penalizes the collection or publication of any document that might affect the sovereignty and integrity of India. Section 5 holds any person liable for wilfully communicating information which might harm the security or interest of the nation. 
2. Section 123 of the Indian Evidence Act, 1872 bars the disclosure of the three documents in the public domain. Section 123 prohibits presenting an unpublished official record relating to any affairs of the nation as evidence, except with the permission from the head of the department concerned.
3. The documents cannot be accessed under the Right to Information Act, 2005. Section 8 of the Act exempts disclosure of any information to any citizen which will prejudicially affect the sovereignty and integrity of India. Notwithstanding this exemption or anything in the 1923 Act, information may be disclosed if the related public interest outweighs the harm to the protected interests (Section 8(2)).

4. The Respondents also argued that certain State actions are outside the purview of judicial review and lie within the political domain, like the one involved in the present case. The action may threaten the security of the citizens of India and should, therefore, be dismissed on the grounds of public policy.

Decision

Chief Justice Gogoi stated, with approval, that there was no issue regarding the publication of the three documents in ‘The Hindu’ newspaper. 

• The Court featured the significance of maintaining a free press in the Indian constitution. Alluding, Chief Justice Gogoi underscored the significance of newspapers to “monitor public enthusiasm by bringing to front the misdeed, lapse, and failures of the administration.”¹

Thus, the distribution of these documents by the press is in “consonance with the established assurance of the right to speak freely of discourse.”

• The acknowledgment of the significance of the opportunity of the Press is repeated in the concurring statement of Justice Joseph, taking note of that “the Press in India has extraordinarily added to the fortifying of democratic rules system in the nation.”²
• The Court additionally noticed that similar standards of the Indian courts are applied by the U.S. Supreme Court, in which the executive looked for prior restriction on the distribution of records known as the “Pentagon Papers.” Chief Justice Gogoi noticed that the Supreme Court declined to pass prohibitory requests on the ground that Congress had not vested any such authority in the executive. Accordingly, to concede such force would amount to unauthorized judicial law and a violation of the separation of powers. The Court contemplated that they didn’t see “how and why the above guideline of law won’t matter to the realities of the current case.” Furthermore, the Court expressed that neither the Official Secrets Act, 1923, nor some other resolution sanctioned by Parliament, vested force to the executive to “control the publication of reports marked as secret or from placing such documents before a Court of Law.” Therefore, the right to publication of these documents is well within the constitutional guarantee of freedom of speech.³
• The Court rejected the argument by the Respondent that Section 123 of the 1872 Act bars the disclosure of the three documents as they are unpublished public records. Rather, Chief Justice Gogoi noted that the documents had already been published in multiple editions of ‘The Hindu’ newspaper. The  Court recognized that Section 123 decisions must be judged based on public interest. However, this judgment was considered to be unnecessary as the documents were already in the public domain accessible to the entire population of India. Therefore, it would be “meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document.”⁴
• The Court went on to consider whether “assuming that the documents have not been procured properly should the same be shut out of consideration by the Court?” The Court determined that improper procurement did not preclude consideration. In this case, the Supreme Court held that the “test of admissibility of evidence lies in its relevancy unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out^{.” 5}
• The 2005 Act exempts disclosure of information which will prejudicially affect the sovereignty and integrity of India, the Court noted that Section 8(2) permits such disclosure if the public interest in disclosure outweighs the harm sought to be protected. 

Furthermore, the Court referred to the object and purpose of the 2005 Act, “the Act was enacted to promote transparency and accountability in the working of every public authority to strengthen the core constitutional values of a democratic republic.”

• As the documents in question were already in the public domain, the Court concluded that no public interest would be served by prohibiting disclosure under Section 8(1)(a) of the Act. ⁶

• Finally, Court Justice Gogoi dismissed the argument made by the Respondent that there are State actions which lie within the political domain, outside of the purview of judicial review. “That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the courtroom, that judges, to give legitimacy to their decision, have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favor and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to color the decision.”⁷ Consequently, the Court dismissed the preliminary objections regarding the validity of the inclusion of the three documents in the review petition.

EndNotes

1. Indian Express Newspapers (Bombay) Private Limited v. Union of India 1985 (1) SCC 641
2. Printers (Mysore) Limited v. Assistant Commercial Tax Officer 1994 (2) SCC 434
3. New York Times Company v. United States 403 U.S. 713 (1971)
4. S.P. Gupta vs. Union of India AIR 1982 SC 149
5. Pooran Mal v. Director of Inspection (Investigation) of Income Tax, New Delhi AIR 1974 SC 348
6. Chief Information Commissioner vs. State of Manipur (2011) 15 SCC
7. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.