Sehar Rauf
Abstract
If information has nothing to do with national security then suppressing it to hide the irregularities or corruption is not justified Supreme Court’s judgment in Yashwant Sinha & Ors. vs. CBI[1] reminded the government of the importance of people’s Right to Information.
This article analyses this judgment in reference to what was the main question behind this judgment and the arguments that led the Supreme Court of India to rule that Right to Information Act supersedes Official Secrets Act.
Further it deals with the submissions made by both the parties and reasoning given behind those submissions. Finally it analyses the future impact of this judgment.
Introduction
The Supreme Court on 14th march, 2019, said that the Right to Information Act (2005) has revolutionized governance in India and that it trumps the Official Secrets Act (1923).[2] These comments were made by Justice K.M. Joseph while hearing the review petition filed in the Rafale deal case. The bench also comprised of former Chief Justice Ranjan Gogoi and Justice S.K. Kaul.
Justice Joseph’s judgment countered the claim made by the government for privilege over Rafale purchase documents under the Official Secrets Act (OSA).He observed that the Right to Information Act was a ‘priceless right’ of ordinary citizens of India to demand information even in matters affecting national security and relations with a foreign state.[3]
The two acts
Right to Information (RTI) is an act of the Parliament of India. Itlays down the rules and procedures regarding citizens’ right to information. Under the provisions of RTI Act, any citizen of India may demand information from a “public authority” which is required to reply expeditiously or within thirty days. RTI is a legal right for every citizen of India.
But this information disclosure is restricted by certain special laws in India. Official Secrets Act, 1923 is one of these laws. The Official Secrets Act 1923 is India’s anti-espionage act and provides for the protection of state secrets and official information, mainly related to national security. In the OSA clause 6, information from any governmental office is considered official information which can be used to override requests under RTI act, 2005.
Admissibility of documents
The Attorney General K.K. Venugopal had claimed privilege over three documents pertaining to the Rafale fighter jet deal with France and said those documents could not be considered in evidence as per Section 123 of the Indian Evidence Act.[4]
He contended that no one can produce them in the court without the permission of the department concerned as those documents were also protected under the Sections 3 and 5 of the OSA. Further, according to Attorney General’s submissions, their disclosure was exempted under Section 8(1) (a) of the RTI Act.[5]
The Centre objected to the admissibility of those documents added by former Union ministers Yashwant Sinha and Arun Shourie and activist lawyer Prashant Bhushan in their review petition against the SupremeCourt’s December 14 judgment in which the court dismissed all the petitions against the Rafale jet deal.
Submissions by petitioner
Prashant Bhushan, senior advocate, who was appearing on behalf of the former union ministers Arun Shourie and Yashwant Sinha , stated the prelimary objections of the centre as mala fide and untenable arguments.He said government cannot claim privilege over the documents which are already published and is in public domain. He said that Section 123 Indian Evidence Act only protected “unpublished documents”.
He also cited Pentagon Papers case of the US, in which a question had arisen as to whether defence documents relating to the Vietnam War could be published, saying that the US Supreme Court rejected the claim of national security.[6]
Supreme Court’s Judgement
The Supreme Court didn’t appear to be convinced with Attorney General KK Venugopal’s arguments for dropping the ‘secret’ documents from record.
The documents in question had been published in The Hindu, a national daily. The case did not strictly involve in a sense the claim for privilege as the petitioners had not called upon the respondents to produce the original and as already noted the state did not take objection to the correctness of the contents of the documents.
Delivering a separate judgment in the Rafale case, Justice K.M. Joseph made the following observations:
- The Right to Information Act confers on ordinary citizens the ‘priceless right’ to demand information even in matters affecting national security and relations with a foreign state.
- Justice Joseph’s judgment countered the claim made by the government for privilege over Rafale purchase documents under the Official Secrets Act (OSA).
- Justice Joseph said the Right to Information (RTI) Act overawes the OSA.
- Under Section 8(2) of the RTI Act, the government cannot refuse information if disclosure in public interest overshadows certain ‘protected interests.’
Future Impact of the Judgment
The Supreme Court has said that the Centre cannot withhold documents from disclosure under the RTI Act citing national security and relations with a foreign state.In order to withhold the documents the applicant must establish that withholding of such information produces greater harm than disclosing it.
This judgment has widened the scope of the people’s Right to Information Act. It further put restrictions on any public authority to snatch away this valuable right by claiming exceptions under the Official Secrets Act which extends to all matters of secrecy and confidentiality in governance in the country.
Conclusion/Suggestion
Justice Joseph, while giving this judgment asked the government to read the Right to Information (RTI) Act, 2005 and he underlined the fact that with the ushering in of RTI jurisprudence, one needs to look forward towards disclosure of information and not go back to the earlier stances adopted in this regard.
The basic objectives of the RTI Act, 2005 are to:
- Empower the citizens
- Promote transparency and accountability in the working of Government
- Contain corruption
- Make our democracy work for the people in real sense.
Clearly this judgment has tried to protect the objectives of this act.
References
- The Wire
- https://www.latestlaws.com/
- SCC Online
[1](2019) 3 SCC 517.
[2]Rafale Deal Case: RTI Overrides Official Secrets Act, Says Supreme Court The Wire, https://thewire.in/law/rafale-case-sc-centre-preliminary-objections (last visited Mar 21, 2020).
[3]RTI Act supersedes Official Secrets Law Current Affairs Today, https://currentaffairs.gktoday.in/rti-act-supersedes-official-secrets-law-04201967912.html (last visited Mar 21, 2020).
[4] Yashwant Sinha & Ors. Vs. CBI, (2019) 3 SCC 517.
[5] Yashwant Sinha & Ors. Vs. CBI, (2019) 3 SCC 517.
[6] Rafale Deal Case: RTI Overrides Official Secrets Act, Says Supreme Court The Wire, https://thewire.in/law/rafale-case-sc-centre-preliminary-objections (last visited Mar 21, 2020)
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