Case in the Supreme Court of India
Case Number – Review Petition (Criminal) No. 46 of 2019 in Writ Petition (Criminal) No. 298 of 2018
Date of Final Judgement – 10th April 2019
In December of 2018, The Supreme Court of India unanimously decided not to doubt the decision made by the Modi led BJP government regarding the purchase of 36 Rafale Fighter aircraft from Dassault Aviation of France. It also quashed all the review petitions challenging its judgement and demanding for a CBI investigation into the same.
The case involves a political controversy accusing the Prime Minister of India of various charges including burdening the public funds, hiding important details related to the defence acquisitions by bypassing procedures of the same, putting the national security of the country at risk, supporting and covering up corruption along with helping his ally by offering a bankable deal. All of these arose after the joint announcement of Indian Prime Minister and French President in 2015 regarding the purchase of 36 Rafale Fighter aircrafts worth 7.8 billion euros (which according to experts should have been something around 5.2 billion euros). After which, the Defence Ministry subsequently withdrew the earlier tender of 126 aircraft that were in negotiation since 2007. This new deal required Dassault Aviation (The French Company responsible for the manufacture of aircraft) to invest 50% of the contract value back into India by creating a demand for Indian goods and services. The previous deal which was supposed to be in collaboration with the Hindustan Aeronautics Limited was also scrapped and leading to a joint venture between Dassault and Anil Ambani’s Reliance Group named Dassault Reliance Aerospace Ltd (DRAL).
Various litigants filed petitions in the Supreme Court regarding the deal and claimed it is tainted with serious procedural irregularities. On 14th December 2018, the court gave a clean chit to the Modi Government by claiming that the said offer suffers from no irregularity in its decision-making process, pricing or selection of the off-set partner and quashed the demand of a CBI inquiry into the same. To come up with the decision, it relied on the evidence produced by the State in sealed covers.
Ministers Yashwant Sinha along with Arun Shourie and Advocate Prashant Bhushan appealed to the court to review its verdict on 2nd January 2019 and were agreed upon on the 21st of February in the same year.
On 6th March 2019, The Central Bureau of Investigation informed Supreme Court about the 3 stolen documents related to the Rafale deal from the Ministry of Defence which were then published by the National Newspaper of India, The Hindu. CBI also went ahead and warned ‘The Hindu’ for publishing the same and violating the provisions of the Official Secrets Act. The Respondents (CBI) raised various issues regarding the case because all of those documents were included in the review petition related to the Rafale Deal. The main arguments raised were:
- The unauthorized removal and publication of the documents violated Sections 3 and 5 of the Official Secrets Acts,1923. Section 3 penalizes spying and Section 5 penalizes a person who has access to a secret document and hands it over to an unauthorized person.
- Relying on those documents violates Section 123 of the Indian Evidence Act, 1872 as it bars anyone from presenting any unpublished official record as evidence without the permission from the head of the concerned department.
- The documents are barred from access within the Right to Information Act, 2005 as Section 8(1)(a) of the same exempts disclosure of any such information to a citizen which can affect the sovereignty and integrity of India. Although the same act allows disclosure if public interest outweighs the harm to the protected interests provided for within Section 8(2) of the act.
- The provision of Separation of Power was also argued which in turn stated that a few State actions are outside the purview of judicial review and the violation of which might compromise the security of the citizens of India.
- The last argument to be put forward was the inadmissibility of documents since the means of their procurement was unauthorized and improper.
A three-judge bench of the Supreme Court comprising of Chief Justice Ranjan Gogoi and Justices SK Paul and KM Joseph delivered the final judgement on the 10th of April, 2019 by dismissing the centre’s objection and allowing the classified documents to be used by the review petitioners. All of the above-mentioned arguments put forward by the Centre were clarified by the court through the majority judgement pronounced by Chief Justice on his and Justice SK Paul’s behalf. Justice KM Joseph gave his separate concurring judgement.
The court expressed no issues regarding the publication of the three documents by ‘The Hindu’ and highlighted how it upholds the principles of ‘freedom of the press’ and its importance in “guarding public interest by bringing to fore the misdeeds, failings and lapses of the government.” It was also highlighted that the publication is in “consonance with the constitutional guarantee of freedom of speech” guaranteed by our Constitution. To further add, the court stated that the Official Secrets Act does not give executive the power to stop the publication of secret documents or from placing it before the court. In doing so, three major cases were referred to namely, Indian Express Newspapers (Bombay) Private Limited v. Union of India 1985, Printers (Mysore) Limited v. Assistant Commercial Tax Officer 1994 and New York Times Company v. the United States.
Chief Justice rejected the second argument by stating that the documents had already been published in ‘The Hindu’ and hence cannot be barred under Section 123 of the Indian Evidence Act 1872. They were already in the public domain and therefore for the Court to not read or consider it would be totally useless.
The court noted that although Section 8(1)(a) of the RTI Act exempts disclosure of information with the potential of putting national security and sovereignty at risk but Section 8(2) permits such disclosures where public interests outweigh the harm sought to be protected. In reference to the Chief Information Commissioner v. State of Manipur case, the court stated that “the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic.”
Justice Ranjan Gogoi dismissed the fourth argument by referring to the observation of Justice H.R. Khanna in the landmark case of Kesavananda Bharati v. State of Kerala stating that the primary duty of the court is to uphold the Constitution without any fear or favour in a calm and dispassionate manner by staying away from the din and controversy of politics.
Relying on the Pooran Mal v. Director of Inspection of Income Tax, New Delhi case, the Court held that the test of admissibility of any document depends on its relevancy unless expressly prohibited under any law. It was finally held that the documents are admissible in the court of law and can be held on record.
The Court after rejecting Centre’s objection went ahead and dismissed the review petitions as it lacked merit and had limited scrutiny of defence contracts under its Article 32 jurisdiction on 14th November 2019.