Access to Public Information, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
Closed Expands Expression
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The Supreme Court of India held that leaked documents relating to the Rafale arms deal were admissible for consideration by the Court. The preliminary objection by the Indian Central Bureau of Investigation (CBI) was brought in opposition to a review of the arms deal on the grounds that the documents which form the basis of the investigation were stolen and thus could not be used in a Court of Law. In dismissing the objection, the three-judge bench reasoned that there was no violation of the Official Secrets Act 1923, or any other statute which prevented placing documents marked as secret before a Court of Law. The Court also found that Section 123 of the Indian Evidence Act, 1872, relating to unpublished public records, did not apply. As the documents were already in the public domain, having been published in ‘The Hindu’ newspaper, it would be “an exercise in utter futility for the Court to refrain from reading and considering the said document.” [para. 6] Finally, referencing Section 8(2) of the Right to Information Act, 2005, the Court noted that the public interest in disclosure outweighed the harm sought to be protected.
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 the 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. The court 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.
On April 10, 2019, the Supreme Court dismissed the preliminary objection by the CBI opposing the inclusion of the leaked documents. Subsequently, in November of 2019, the Supreme Court dismissed the review petitions against its verdict in the Rafale deal on the grounds that they lacked merit.
Chief Justice Ranjan Gogoi delivered the majority opinion for the three-judge bench of the Supreme Court.
The main issue before the Court was whether the three documents published by ‘The Hindu’ and included within the Applicants’ review petition of the Rafale deal should be accessed and considered by the Supreme Court.
The Respondents in this case argued that:
The publications in ‘The Hindu’ and the freedom of the press
Chief Justice Gogoi stated, with approval, that there was no issue regarding the publication of the three documents in ‘The Hindu’ newspaper.
The Court highlighted the importance of upholding a free press in the Indian constitution. Referring to Indian Express Newspapers (Bombay) Private Limited v. Union of India 1985 (1) SCC 641 and Printers (Mysore) Limited v. Assistant Commercial Tax Officer 1994 (2) SCC 434, Chief Justice Gogoi emphasised the importance of newspapers to “guard public interest by bringing to fore the misdeeds, failings and lapses of the government.” [para. 4] Thus, the publication of these documents by the press is in “consonance with the constitutional guarantee of freedom of speech”. [para. 4]
The recognition of the importance of the freedom of the Press is echoed in the concurring statement of Justice Kuttiyil Mathew Joseph, noting that “the Press in India has greatly contributed to the strengthening of democracy in the country.” [para. 2]
Official Secrets Act 1923
The Court further noted that the same principles of the Indian courts are applied by the U.S. Supreme Court in New York Times Company v. United States 403 U.S. 713 (1971), in which the executive government sought prior restraint on the publication of documents known as the “Pentagon Papers”. Chief Justice Gogoi noted that the Supreme Court declined to pass prohibitory orders on the ground that Congress had not vested any such authority in the executive. Thus, to grant such power would amount to unauthorized judicial law and a violation of the separation of powers. The Court reasoned that they did not see “how and why the above principle of law will not apply to the facts of the present case.” [para. 5] Furthermore, the Court stated that neither the Official Secrets Act, 1923, nor any other statute enacted by Parliament, vested power in the executive to “restrain the publication of documents marked as secret or from placing such documents before a Court of Law.” [para. 5] Therefore, the right to publication of these documents is well within the constitutional guarantee of freedom of speech.
Section 123 of the Indian Evidence Act 1872
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.
Referring to the case of S.P. Gupta vs. Union of India AIR 1982 SC 149, the Court recognised that Section 123 decisions must be judged on the basis of 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.” [para. 6]
Improper procurement of documents
The Court went on to consider whether, “assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?” [para. 7] The Court determined that improper procurement did not preclude consideration, relying on Pooran Mal v. Director of Inspection (Investigation) of Income Tax, New Delhi AIR 1974 SC 348. 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.” [para. 7]
Right of Information Act 2005
While 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, as set out in Chief Information Commissioner vs. State of Manipur (2011) 15 SCC: “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.” [para. 8]
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.
Political domain and the purview of judicial review
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. The Court relied on the observations of Justice H.R. Khanna in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461: “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 court room, that judges in order 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.” [para. 11]
Consequently, the Court dismissed the preliminary objections regarding the validity of the inclusion of the three documents in the review petition.
Justice Kuttiyil Mathew Joseph delivered a concurring opinion.
Justice Joseph began with an assessment of the freedom of the press. While he recognises the importance of this freedom, if it is “enjoyed by the Press without a deep sense of responsibility, it can weaken democracy.” [para. 3] As such, the Justice addresses the “disturbing trend” of a growing bias in the press.
In considering the privilege for unpublished public record under Section 123 of the Indian Evidence Act, 1872, Justice Joseph observed that there are two classes of documents which form the basis of privilege: (1) on the basis of the content of the particular documents; (2) the document falls in a class of documents entitled to protection.
Justice Joseph described section 8(2) of the 2005 Right to Information Act as a priceless right through which even a privileged “class of document” can be requested if it is established that withholding of such information produces greater harm to the public interest than disclosing it. Through Sections 8(1)(a) and 8(2) of the 2005 Act, Justice Joseph inferred that certain values which were formerly considered as an unquestionable reason to withhold information will also have to be tested on the ground of the public interest. Accordingly, any claim will have to be judged on a case-to-case basis and no class of document can be privileged. As stated by Justice Joseph, “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.” [para. 20]
Justice Joseph continued by considering the influence of Section 8(1)(a) of the RTI Act on a claim for privilege under Section 123 of the 1872 Act. The Justice notes that a case for information under Section 8(1)(a) must still fulfill the requirements set out under Section 8(2). However, he also questioned whether “what an officer under the RTI Act can permit” [para. 24] could be restricted by a superior court under Section 123 of the Evidence Act. Justice Joseph concluded that the court can, “subject to one exception, namely, if it is a matter which is tabooed under Article 74(2) of the Constitution.” [para. 24] Article 74(2) of the Indian Constitution bars courts from inquiring into advice tendered by ministers to the President. Therefore, Section 123 of the 1872 Act is subjected to the 2005 Act and the foundation of a claim under Section 123 will also be determined on public interest.
Justice Joseph took note of Sections 22 and 24 of the 2005 Act. Section 22 gives an overriding effect to the 2005 Act, even over the Official Secrets Act. Section 24 also prevents the application of the 2005 Act over intelligence and security organizations, except in the cases when the information pertaining to the allegations of corruption and human rights violations.
Justice Joseph went on to note that the common law of India sets out that the assessment for whether material may be considered by a court is based upon relevancy. As such, whether or not the evidence was procured illegally “would not ordinarily be very significant in itself in regard to the court’s decision to act upon the same.” [para. 26] To support this point, Joseph referred to the case of Pooran Mal v. Director of Inspection (Investigation) of Income Tax AIR 1974 SC 348: “the test of admissibility of evidence lies in 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.” [para. 26]
Finally, Justice Joseph recognised that, while the documents had not been officially published, they were already in the public sphere via ‘The Hindu’ newspaper. Furthermore, the case does not necessarily involve the claim for privilege as the petitioners have not called upon the respondents to produce the original documents. Rather, “the request of the respondents is to remove the documents from the record.” [para. 31] In cases such as this, the Justice recognised that the rule of relevancy alone may not suffice, should there be an overriding public interest.
He noted that the documents have already been published by the newspaper “The Hindu” and that the authenticity of the documents is not under challenge. The request of the respondents is to remove the documents from the record. Further observing that the present review arises out of complaints pertaining to corruption charges and relying on the observation of Justice Stephen in the Australian High Court case, Sankey v. Whitlam (1978) 142 CLR 1 (which discusses improper functioning of the arm of government and public interest involved), he held that public interest justifies admitting of the documents and concurred with the order given by the Chief Justice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is a welcome decision that will further help in fostering transparency, even over official secrecy. It can also be said that the modern principles of transparency in public offices and the right to information have been given effect over the colonial principles of privileges and security.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 8(1)(a), 8(2), 22 and 24
Sections 3 and 5
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