The Rafale case has been creating political and other upsurges. It has been more intensified because of the impending general elections. The Supreme Court in its own wisdom has delivered a judgment on the basis of a sealed cover (now revealed to be unsigned papers) submitted by the Central Government. But independent of all, other details and ramifications, the sudden utterances of Attorney General (AG) KK Venugopal have definitely rung a discordant note, not in vive with democratic norms. His claim was to the effect that the documents pertaining to the purchase of Rafale jets, as published by media, particularly, by the ‘Hindu’, had been “stolen”. The AG went further to state before the court that the ‘Hindu’ had committed contempt of court by the revelations of the so-called “secret” papers of the government. There was an element of threat to gag the Press reminiscent of the Emergency days. It is probably, for the first time, that acrimonious comments were made by the AG in the courtroom against the media. It appears the AG’s comments were indicative of a blurring of the distinction between public interest and the interest of the government of the day. He further claimed that the documents pertaining to the Rafale purchase published by the media had been “stolen”. Probably, the AG himself did not notice the underlying implication that there was an inherent admission that the documents were authentic and genuine. The material evidence disclosed so far by the media reveal that parallel parleys held at the initiative of the PMO undermined the Indian negotiating team’s discussions with the French side. A crucial question had been raised about the absence of bank guarantees to hedge against any eventual default by the seller. This had an adverse effect on the pricing of the 36 Rafale jets sought to be bought under fly-away conditions. There cannot be any doubt that these revelations advance the public interest and had no impact on national security. The publication of the documents and the news reports based on them are all within the domain of legitimate exercise of the freedom of expression. The threat of criminal investigation under the Official Secrets Act (OSA) is more distressing. It revealed the mindset not conducive to a liberal democratic functioning. The government was partly on the back foot when it claimed that the court should not rely on “stolen” documents while hearing the petitions seeking a review of its judgment, which had declined a probe into the Rafale deal. It is common knowledge that the method of procurement of evidence is not material; and what is essential is whether the material was relevant in the context of an effective and meaningful adjudication. As said by lawyers, even illegally-procured evidence can be admissible, depending on the circumstances of the case. It was interesting to observe one of the judges asking the AG: whether a government can seek shelter behind national security if a corrupt practice had indeed taken place?
Governments, irrespective of parties they belong to, have often been tempted to rely on the OSA, an anachronistic colonial law. It cannot be forgotten that in SP Gupta’s case (around 1981), the Supreme Court spoke of an “open society” and the need for disclosure of materials. It is common knowledge that privilege has to be claimed in a particular manner; and there is no privilege from the court to have access to any piece of information. In the Raj Narayan/ Indira Gandhi case in 1975, the Supreme Court even thought of pasting the irrelevant or non-disclosable and not pasting the relevant part of any document so as to be disclosed in public interest. This archaic law primarily targets documents and other materials. However, Section 5 of the same Act criminalises voluntarily receiving and possessing such documents if given in contravention of the Act. A careful reading of the section was undertaken by the Law Commission in one of its reports in 1971. This report said that the wording of the section was undesirably wide. However, the Law Commission left it to the government to decide against prosecution if the information claiming to have been leaked did not materially affect the interest of the state.
On such sensitive matters, one cannot forget the distinction between an act that helps the enemy or affects national security and one that advances legitimate public interest. As at present when the freedom of information is held to be essential for an effective democracy, laws such as the OSA should and would yield to the moral imperative behind the Right to Information Act. One can see this in the provisions of Section 8(2) of the RTI Act. This provision says that notwithstanding the provisions of the OSA, “a public authority may allow access to information if public interest in disclosure outweighs the harm to the protected interests”. This necessarily implies that the government ought to refrain from using the secrecy laws to somehow avoid and cope with the embarrassing revelations by the media. This calls for a responsible response by the government instead of turning acrimonious and combative. This is also based on the premise that the government is not the “owner” of the state but a “trustee” of the state power.
More interesting has been the sudden U-turn of the AG in his submissions before the court last week. He stated that the documents of the Defence Ministry pertaining to the Rafale jet purchase were “not stolen” from the Ministry. He clarified that what he meant in his submission was that the petitioners had used photo copies of the originals “deemed secret” by the government. It is further reported that the AG also stated, “I am told that the opposition has alleged what was argued in Supreme Court was that files have been stolen from the Defence Ministry. The statement that files have been stolen is wholly incorrect.” The AG went on to clarify that the petitioners had annexed three photocopies of the newspaper report. Further confusion was injected by saying that the use of the word “stolen” by the AG could have been avoided.
This is the first time that the AG of India, a Constitutional authority and not a servant of the government, is placed in such an embarrassing situation. One hopes such instances find themselves buried in the heap of other undesirable events of history. It is now necessary to call for a revisit of the OSA, which survives as a relic of the colonial past. Media disclosures of the true state of affairs are a necessary component of a democratic edifice. The OSA needs to be restructured and rewritten in keeping with the mandates of Part III of the Constitution dealing with the fundamental rights, specially relating to information and expression. Holding out threats to the media is to be avoided at any cost. However, resistance can be there to the “fake” news and “paid” news. The public pressure for this has to emerge from the body polity at large.
It is time the unfortunate trends such as the recent one was avoided with caution and care. It is for the AG now to wash out the aberrations caused by his utterances and provide a more sensitive and responsive attitude so as to prevent recurrences of such events. A robust and informed public opinion is to be articulated to ensure that the democratic fabric is not weakened but strengthened. This requires the youth force to actively participate in galvanising public opinion. They owe it as a duty to the society as the majority group among the voters in the forthcoming elections. The matter relating to the rights of citizens at large cannot be a sectarian concern.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)