SC rejects Centre’s plea on Rafale papers

The dates of hearing the petitions will be fixed later, the CJI said, after reading out the operative portion of his judgment. The Supreme Court responded to Attorney-General K.K. Venugopal’s argument that keeping the Rafale issue “alive” would be a threat to national security, by quoting Justice H.R. Khanna, the iconic lone dissenter in the Emergency case, who said “judges, in order to give legitimacy to their decision, have to keep aloof from the din and controversy of politics and the fluctuating fortunes of rival political parties… Their primary duty is to uphold the Constitution and the laws without fear or favour.” Mr. Venugopal had argued that “stolen” documents came under the protection of the Official Secrets Act (OSA). They were not admissible in evidence in a court of law. Claiming privilege, the government had wanted the court to ignore the documents, even if they were found to be germane to the Rafale case, and dismiss the review petitions at a preliminary stage.

SC rubbishes claim

The Supreme Court, however, rubbished the government’s claim of privilege.

It said neither OSA nor any other law empowers the government to stop the media from publishing the documents nor the court from examining them.

Besides, Chief Justice Gogoi said claiming privilege over the Rafale documents was an “exercise in utter futility.”

The documents were already within the reach and knowledge of the entire citizenry. This being the scenario, there was no reason for the Supreme Court to stop itself from “reading and considering the documents or from shutting out its evidentiary worth and value.”

It would be “unauthorised judicial law-making” if the court banned government records from the public eye when Parliament had no such intention, Chief Justice Gogoi said, referring to the U.S. Supreme Court’s decision in the ‘Pentagon Papers’ case.

Justice K.M. Joseph, in his separate but concurring judgment, said the court had before it allegations of wrong-doing by the “highest echelons of power.”

According privilege to the Rafale documents would come close to conferring immunity from conviction, Justice Joseph indicated.

Moreover, Chief Justice Gogoi reasoned that the Right to Information (RTI) Act anyway has superseded the colonial OSA of 1923. The RTI Act champions transparency and accountability in governance. It mandates disclosure of even secret government records in the greater public interest.

Freedom of press

The lead judgment written by Chief Justice Gogoi said the publication of the Rafale documents by The Hindu reminded the Supreme Court of its “long line of decisions” upholding the freedom of the press. The court referred to one of its own past judgments which quotes Pandit Jawaharlal Nehru as saying, “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.”


Justice Joseph pointed to how the RTI Act symbolised the will of the people to fight an unrelenting crusade against corruption.

The judge pointed to how Section 24 of the Act provides that allegations of corruption as well as human rights violations should not be exempted from disclosure under the law.

The court would now hear the Rafale review petitions on merits. It would examine the pleas on the basis of three published documents. These documents span issues like objections raised by the Indian negotiating team about parallel negotiations conducted by the Prime Minister’s Office, among others.