Rafale review petitioners clear the first hurdle

A Supreme Court Bench comprising Chief Justice of India, Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph, in two separate judgments on Wednesday, dismissed the Centre’s preliminary objections questioning the maintainability of the review petitions in the ongoing Rafale case.

The petitions were filed against the Bench’s earlier judgment rejecting pleas for an impartial probe into the alleged irregularities in the acquisition of 36 Rafale fighter jets by the Indian Air Force from France.

The Centre had claimed privilege regarding the documents produced by the review petitioners — former union ministers Yashwant Sinha and Arun Shourie, and lawyer Prashant Bhushan — and contended that the court could not consider the leaked documents, obtained “unauthorisedly” from the Ministry of Defence, as they lacked in bona fides.

The petitioners had alleged, on the basis of the leaked documents, that the Centre suppressed information about the procedure through which the Rafale contract was signed, the pricing of the aircraft and the offset contract that was awarded to industrialist Anil Ambani’s company, on extraneous grounds.

The Bench held, by citing Section 8(2) of the Right to Information Act, that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub-section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. “When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest,” Chief Justice of India Ranjan Gogoi and Justice Kaul held in their judgment.

The judgment reproduced a long list of case laws, in defence of freedom of the press, and finds nothing wrong in the publication of three documents on the Rafale deal in The Hindu , (as reported by N Ram) the Court’s reliance on which the Centre took objection to, on the basis of national security and official secrecy.

Relying on the Court’s landmark judgment in Kesavanand Bharati case (1973), the Bench held that it is its duty to interpret the Constitution and the laws without fear or favour.

The two Judges, therefore, concluded that the review petitions have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents.

Note from negotiating team

Among the three documents is an eight-page note written by three members of the Indian Negotiating Team in reference to the Rafale deal (note dated June 1, 2016) and two official notes, classified under the Official Secrets Act, all pointing to several instances of non-compliance with established procedures, weakening India’s position.

Justice Joseph, while concurring with the other two judges on the Bench, reasoned that economic development of a country is closely interconnected with the attainment of highest levels of probity in public life and that in some of the poorest countries in the world, poverty is intricately associated with corruption.

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