Justice Joseph cites information law as government seeks to keep Rafale pricing details under wraps

An all-out effort by the government to claim privilege and push the Rafale jets’ pricing details back into the dark zone was met with a stoic counter from Justice K.M. Joseph in the Supreme Court on Thursday.

The government’s reasons to hush the Rafale prices ranged from national security to not upsetting a “solemn undertaking” given to France to keep the price of the jets a secret.

Multiple Sections

But Justice Joseph, one of the three judges on the Bench, asked the government to read out Sections of the Right to Information (RTI) Act, 2005. The judge said the information law has revolutionised governance and overpowered notions of secrecy protected under the Official Secrets Act, 1923.

Attorney-General K.K. Venugopal was first made to read out Section 22 of the RTI Act, which declared the RTI to have an “overriding effect” over OSA. Then Section 24, which mandates even security and intelligence organisations to disclose information on corruption and human rights violations. Finally, Section 8(2), which compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests”.

Mr. Venugopal defended that defence purchases dealt with the security of the state, which “supercedes everything else”. To this, Justice Joseph said, “The Parliament has passed the RTI Act in 2005 and brought about a complete revolution, a complete change. Let us not go back to what it was”.

The government wants the court to refrain from examining the documents, which have already been published in the media, primarily The Hindu, on the purchase of the Rafale fighter aircraft. It claimed the documents were unauthorisedly photocopied from the originals kept in the Ministry of Defence and sneaked into the public domain.

Even the petition seeking a review of the December 14 judgment of the Supreme Court, upholding the Rafale deal, is based on these “stolen” documents”, the government claimed. In an affidavit filed on March 13, the government said the leak was a “conspiracy” to jeopardise national security and friendly relations with France, the home of Rafale’s manufacturer, Dassault Aviation.

The Bench heard the case for an hour and reserved its orders on two preliminary issues — the admissibility of “stolen” documents as evidence and the claim of privilege raised on them by the government. “How is it that you decide privilege protection? Is there a high-level, inter-departmental call taken on this? Can’t the court even examine the documents to decide your claim of privilege,” Justice Joseph asked Mr. Venugopal at one point.

Justice S.K. Kaul asked Mr. Venugopal the logic behind claiming privilege now when the documents were already in the public domain.

“They have produced it in the public domain after stealing it. State documents cannot be published without explicit permission,” Mr. Venugopal cited Section 123 of the Evidence Act.

In his turn, advocate Prashant Bhushan, who is one of the review petitioners, said the government’s reason for seeking privilege was malafide.

“Documents are already in public domain in public interest. There is a lot of Supreme Court judgments which hold that public interest trumps over privilege,” Mr. Bhushan argued.

The senior lawyer said the government itself has filed the Comptroller and Auditor General (CAG) report detailing “10 kinds of defence purchases”.

“But only the details of the Rafale deal are redacted. Why? The government note in the Supreme Court in November 2018 said the CAG report would be redacted. How did the government know then the CAG report would be redacted?” Mr. Bhushan asked.

He said the test of admissibility of documents in court was relevancy and not their source.

In a parting shot, review petitioner and former union minister Arun Shourie, who was accompanied by his former colleague Yashwant Sinha, said the government’s claims that the Rafale documents were stolen proved that they were genuine.