The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features

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reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence from being taken on “unpublished official records relating to any affairs of State” – is misplaced and incorrect, as is his reliance on the Official Secrets Act.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.

 

Guest Post: Secret Laws and Retrospective Punishment – on the Unconstitutionality of the Official Secrets Act

(Previously on this blog, we have looked at the intersection between the Constitution, and criminal procedure. In this guest post, Abhinav Sekhri examines how the Official Secrets Act is constitutionally suspect by enabling the possibility of retrospective creation of offences. The post first appeared here, on the Proof of Guilt blog, and has been cross-posted with permission.)

—

Very little intelligent discussion happens concerning the Official Secrets Act [OSA] in India. You could say this lack of discussion is by design, and means the law is doing its job. Perhaps it is. What it also does is perpetuate a culture of secrecy surrounding decision-making by officials. With an increasing intensity surrounding the freedom of information movement, there was a spurt in questions being raised in the Rajya Sabha (see here, here, here and here. I am certain it was discussed in the Lok Sabha as well) about the Official Secrets Act. The tenor of government’s responses seemed consistently non-committal but implying that change is mooted. But this seems to have changed as momentum stilled (see here, and here). In the meanwhile, we had the Right to Information Act bringing its overriding clauses, and the 2nd Administrative Reforms Commission recommending a repeal of the statute altogether. Obviously, that didn’t happen. This post takes up the argument that the criminalisation under the OSA is unconstitutional.

 

Context

The OSA is acknowledged to be a British legacy, dating back to 1923 (earlier variants existed as well). The statute’s context belie the imposing title. The phrase “official secrets” does not find any definition or mention; the law primarily attends to cases of espionage by using broad definitions of the potentially sensitive information involved. Offences are not designed simply, stating that one who steals “official secrets” shall be punished. Offences (such as Section 3), require individuals to act “prejudicial to the interests” of India, and these acts must be the unauthorised acquisition or dissemination of “secret official code, or password, or any sketch, plan, model or other information” that is useful to the enemy and/or prejudicial to India’s interests. Cases can only begin on a complaint by the authorised officer, and a sanction to prosecute the official must be granted before cognizance can be taken.

The Issue of Knowledge

Two questions become important here, (i) how do persons know that a a code or sketch, plan model etc is potentially useful to the enemy or affects the security and interests of India and  (ii) does it matter whether they know or not? Dealing with the second issue first, all hints point to a position of law that disregards the need for an accused to have knowledge. I argue this on the basis of the two primary offences, Sections 3 and 5. Section 3 was mentioned above, and sub-section (2) therein supports my claims. It allows a conviction simply on the basis of the ‘conduct or known character’ of the accused and allows the court to dispense with a need to specifically prove that the person had some prejudicial purpose. Not only does this go against the basic tenets of treating character evidence (which has been blogged about earlier), but in a unique manner disregards both actus reus and mens rea requirements. Nifty.

Section 3 is prefaced by a mental element (the acts must be “with a purpose prejudicial to the safety or interests of the State“), regardless of how it is rendered nugatory. Section 5 contains no such preface and so makes the knowledge issue more potent. It has three sub-sections, out of which only Section 5(2) uses the words “knowing or have reasonable ground to believe“. Does that mean the other offences do not require any knowledge element? A Constitution Bench of the Supreme Court approves of this logic (seeRanjit Udeshi v. State of Maharashtra, AIR 1964 SC 881). It is nobody’s case that the accused is unconsciously in possession of the documents – possession is conscious. But does the accused need to know that the documents were, to wit, “likely to assist, directly or indirectly, an enemy“?

The statute clearly suggests that knowledge is not essential, nor is lack of knowledge a defence. Interestingly, the U.K. repealed its old statute (contemporary to ours) to insert lack of knowledge as a defence (UK Official Secrets Act, 1989). Thus it is a defence if the person did not know, or did not have reasonable cause to believe, that the material concerned was such that its disclosure was prohibited. This is not unconstitutional strictly speaking, but goes against a the basics of criminal theory that one could argue are part of substantive due process.

(Ed. Interestingly, in a judgment handed down yesterday, the Court of Appeals in the UK held that without an intent requirement as part of the definition of terrorism, the UK Terrorism Act was incompatible with human rights)

Classification and Clearer Unconstitutionality

I’m not a fan of the Article 21 is omnipotent school, and so try and make my case on clearer grounds by answering the first question I posed. The question was how do persons know whether documents are state secrets when the document hasn’t got TOP SECRET on its face. The answer exists, and is in the form of a Ministry of Home Affairs Manual on Departmental Security Instructions. After the RTI a request was made for disclosure of this Manual. This was denied by the Ministry, and contested right up to the Central Information Commission. The Commission upheld that decision to deny disclosure, reasoning that making the classification public would prejudice the safety of the state.

Since nobody but the State knows whether something was secret, and holding secrets is an offence, what stops the State from deciding something is secret after it goes public? Take an example. A journalist, X, gets his hands on a non-public pending legislative bill potentially legalising marijuana and makes it public. The Police arrest X, suspecting him of having secret information, and ask the Government whether such non-public legislative bills form information of the kinds barred by the OSA. Here is the problem. (A) Since I cannot know if the information I have is potentially secret, any determination made now is ex-post-facto and illegal. (B) Since nobody knows what information is secret, nothing stops the State from deciding how to treat papers ex-post-facto, rendering any offences which follow unconstitutional under Article 20(1).

(Ed. There are two issues here. One is the question of whether a secret law, by virtue of being secret, violates Article 20(1), since it enables the State to make (secret) changes to it after the commission of any act, by which that act can be criminalised. Now, it is well-established that the possibility of abuse under an Act is no ground for the Court to hold that the Act is unconstitutional. However, those cases are premised upon the assumption that you can go to Court against the abuse itself, and obtain a remedy. In case of a secret law, there’s no way of even knowing when abuse has taken place, in the form of a post facto modification of the secret law. In such a scenario, it would appear that the logic in Romesh Thappar’s Case – i.e., that a law that enables unconstitutional action is itself unconstitutional – is more apposite.

It seems to me, though, that a better argument would be to invoke vagueness. In Kartar Singh, and then in Shreya Singhal, the Court held that vagueness is a ground for striking down legislation, primarily because it does not allow people to plan their affairs in a manner so that the can comply with the law, and in the case of free speech, casts a chilling effect. A secret law is the vanishing point of vagueness – it’s the point at which you literally don’t know what’s legal or illegal. In such a situation, vagueness should be invoked to strike down the law.)

What’s the Point?

India, along with South Africa, remains the only prominent erstwhile colony to have not reworked its secrecy law in the wake of the freedom of information movement. The point, therefore, is that such a blanket secrecy law curbs journalistic expression and is fundamentally anti-democratic. The arbitrary noose of the OSA may be brought upon any unwitting reporter, making her think thrice about writing that story on Naxal rebels in the heartlands. This is an old, overused point, but it seems silly that we’ve retained a British law that Britain comprehensively repealed. They even make the classification public. If nothing else, Section 5 must go.

—

(Abhinav Sekhri is a Delhi-based advocate)