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In a judgment handed down today, the Supreme Court rejected the Government’s objections against the maintainability of the review petitions in the Rafale Case. More specifically, during the hearing, the Attorney-General had objected to the production of three newspaper articles published in The Hindu. The AG had argued that as these documents had been unauthorisedly obtained from the Defence Ministry, and as they pertained to issues concerning national security, they should not be admitted as evidence. It was this contention that the Court rejected today, paving the way for a full merits hearing of the review petition.

The concurring opinions of the Chief Justice and of Joseph J., for the most part, articulate settled legal principles. Both judgments hold that the manner in which a document has been obtained does not ordinarily affect the question of its admissibility in court. Under the Indian Evidence Act, the standard is that of relevance: as long as a piece of evidence is relevant, even if it has been illegally obtained, that will not prevent a court from admitting and considering it. Both judgments then also note (although for different reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence from being taken on “unpublished official records relating to any affairs of State” – is misplaced and incorrect, as is his reliance on the Official Secrets Act. With the AG’s affirmative defences having failed, and on the relevance standard of the admissibility of evidence, both judgments then conclude that the review petition is maintainable.

The Opinion of the Chief Justice 

So far, so good. Both judgments, however, have other interesting aspects that merit some study. The Chief Justice, for example, embarks on a brief consideration of the law relating to the freedom of the press, and while analysing The Pentagon Papers case from the United States, has this to say:

By a majority of 6:3 the U.S.  Supreme Court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers.  We do not see how and why the above principle of law will not apply to the facts of the present case.  There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties. (paragraph 6)

I want to focus on the underlined lines, because they express a position of law that the Supreme Court has emphatically not been adhering to in recent times. In PILs to ban books and censor films – filed both before the High Courts and the Supreme Court – where the statutory framework for regulation is very clear, it is the Supreme Court that has “carved out … a jurisdiction” for itself, where it considers such pleas for bans, and returns findings on merits. The apotheosis of this was ex-CJI Dipak Misra’s judgment in Meesha (discussed here), which shredded the scheme of the CrPC by granting direct jurisdiction to ban books to the higher judiciary, as opposed to its more limited actual remit, which was to judicially review executive-ordered book bans. Paragraph 6 of the Chief Justice’s opinion in today’s judgment is a salutary reminder that separation of powers concerns preclude the Supreme Court and the High Courts from entertaining PILs asking for book bans or film bans, and hopefully, it is a reminder that will be heeded in the future.

The second interesting aspect of the Chief Justice’s judgment speaks to an argument that was vehemently advanced by the AG during the hearing. When confronted with the incontestable legal proposition that the source or manner in which a document has been obtained has no bearing on its admissibility as evidence, the AG then turned tack and argued for carving out an exception to that rule for cases involving national security. In other words, he asked for a blanket exemption, from judicial review, of any material that (in the opinion of the State) had implications for national security. As many people noted at the time, this is a profoundly dangerous argument that would, among other things, end up gutting the Right to Information Act. From that perspective, the Chief Justice’s emphatic rejection of the argument (paragraph 11) can allow all of us to breathe a sigh of relief. Even under existing legal doctrine, the judiciary invariably accords to the State a very high level of deference on issues of national security; a blanket exemption from consideration altogether would, however, go against entire idea of constitutional supremacy in a democratic republic.

The Opinion of Joseph J.

Justice Joseph’s opinion, as well, has some thought-provoking arguments. While the Chief Justice dismisses the AG’s arguments on privileged documents on the ground that they were no longer “unpublished”, and the RTI/Official Secrets Argument on the ground that these were simply inapplicable to the case, Justice Joseph embarks upon a more elaborate examination of both. In particular, following the Chief Justice’s analysis on the issue of blanket exemptions to admissibility, Justice Joseph holds that Section 123 of the Evidence Act is now subject to the RTI (paragraph 24) more importantly, he holds that with the onset of the RTI regime, the State can no longer claim privilege for an “entire class of documents” (by, for example, invoking “national security), and immunise them from public scrutiny. (paragraph 20) Rather, the RTI regime now requires any such claim by the State to be assessed on a case-to-case basis, with considerations of public interest central to the enquiry. This, again, is important in a world where the State regularly invokes “national security” as a shibboleth to prevent any further discussion.

It is on the question of relevance and illegally obtained evidence, however, that I have my only point of criticism to make. Towards the end of his judgment, Joseph J. observes that:

I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. (paragraph 31).

He then goes on to hold, however, that since the present case pertain to allegations of corruption in high places, the public interest justifies admitting the documents. This, in my view, is a completely unnecessary muddying of the waters. The Chief Justice’s opinion is crystal clear on how courts should not be creating new sets of jurisdictions that limit or censor expression. The rule of relevance is a straightforward one, and it is difficult to see why a further “public interest” requirement needs to be introduced here.

Conclusion

The Supreme Court’s judgment(s) today provide a welcome restatement of long-settled legal principles. They further affirm the regime of transparency that already existed under common law, an was then significantly strengthened by the RTI – as opposed to the regime of secrecy represented by the Official Secrets Act and shibboleths of “national security.”

That said, however, to me, it remains a matter of some concern that these arguments were made in the first place, and needed two detailed judgments to rebut. Like the broader public discourse, judicial discourse also has an Overton window; and it is difficult to see the AG’s arguments as anything other than an attempt to shift that window, and to make a set of fringe – almost laughably off-piste – arguments respectable. It may perhaps, therefore, have been even better if the Supreme Court had rejected them out of hand, rather then giving them a veneer of respectability by hearing them out, reserving orders, and then delivering a judgment on merits.

Once that was done, however, there is little doubt that today’s judgment(s) unambiguously reject the State’s attempts to overturn the gains of the RTI and re-establish colonial-style secrecy; and for that, they ought to be welcomed.