Former CJIs opine on Supreme Court’s decision to rely on Rafale documents published by “The Hindu”.

The Supreme Court’s decision to dismiss claims of privilege made by the government and rely on Rafale documents published by The Hindu while considering review petitions is a rare acknowledgment of quality investigative journalism by the highest court of the country, former Chief Justice of India R.M. Lodha said on Saturday.

“One has to understand that the Supreme Court had already given its final verdict upholding the Rafale deal on December 14,” said Justice (retd) Lodha. “The court is now only examining the limited relief of review. Even then, the court found the documents published by The Hindu relevant and decided to examine the issue on the merits of these documents. The court has taken this step in larger public interest,” he added.

The former CJI said the April 10 judgment was a “boost for true investigative journalism and not the sensational kind”.

‘Right to free speech’

Former Chief Justice of India V.N. Khare said the Supreme Court had pegged the right to free speech over claims of privilege, confidentiality and sanction since 1981. The Rafale judgment was indeed the latest in a long line of Supreme Court decisions championing free speech.

“Investigative journalism should bring out documents which serves larger public interest without jeopardising the security of the nation,” Justice (retd) Khare said.

Also Read Investigative reports by N. Ram on the Rafale deal

“That the court would consider documents published in The Hindu while examining the review is itself a boost to investigative reportage,” former Chief Justice of India K.G. Balakrishnan said.

The Supreme Court has held that the government cannot practice ‘absolutism’ in withholding of information. In this context, the apex court has held that the Right to Information (RTI) Act confers on ordinary citizens the “priceless right” to demand information even in matters affecting national security and relations with a foreign State.

Justice K.M. Joseph, in his separate judgment in the Rafale case, countered the government’s position that publicising the Rafale documents had affected national security and India’s relations with France. Justice Joseph said the RTI Act overawes the Official Secrets Act of 1923. His separate opinion points to Section 8 (2) of the RTI Act, which mandates that the government cannot refuse information if disclosure in public interest overshadows certain “protected interests”.

“The Parliament has appreciated that it may be necessary to pit one interest against another and to compare the relative harm and then decide either to disclose or to decline information... if higher public interest is established, it is the will of Parliament that the greater good should prevail though at the cost of lesser harm being still occasioned,” Justice Joseph described the purpose of Section 8 (2).

The judge described the provision as nothing short of a “legal revolution”.

However, secret information is not to be given for the mere asking. The RTI applicant must establish that withholding of such information produces greater harm than disclosing it.

Section 8 (2) balances the list of exemptions to disclosure granted under Section 8 (1)(a) of the RTI Act. The latter section allows the government to refuse information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security and strategic security and strategic scientific or economic interests of the State, relation with a foreign State or information leading to incitement of an offence.