Two cases that engaged the attention of the Supreme Court last week deserve to be noticed. One relates to Rafale and the other to electoral bonds. There is an attitudinal change by the court from the original Rafale situation while dealing with the objections to the maintainability of the review petition. The court has maintained the pristine importance of freedom of expression and a free Press.
The court, in entertaining the review petition, has at the threshold to deal with the issues of secrecy and freedom of expression. In an unambiguous support for freedom of expression in a democracy, the court on last Wednesday dismissed the Government’s plea to declare the Rafale purchase documents a secret while upholding the right of free expression. In a three-judge Bench, Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul said the right to publish the Rafale documents was in consonance with the Constitutional guarantee of freedom of speech.
The court has effectively dismissed the preliminary objection of the Government against the petitions seeking a review of its December 14, 2018 judgment, which upheld the deal for purchase of 36 Rafale jets. The claim of the government was that the pleas in the review motion were based on secret Rafale documents unauthorisedly removed from the Ministry of Defence and leaked to the media.
The court has also responded to the argument of Attorney General KK Venugopal that keeping the Rafale issues “alive” would be a threat to national security. Venugopal had quoted Justice HR Khanna in his dissenting judgment in habeas corpus case. Justice Khanna 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.” 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.
The court, however, has not been persuaded to accept the Government’s claim regarding privilege. The court said neither OSA or any other law empowers the Government to stop the media from publishing the documents nor the court from examining them. Chief Justice Gogoi said in his judgment that claiming privilege over the documents was an “exercise in utter futility”. Chief Justice Gogoi refers to the US Supreme Court’s decision in the “Pentagon Papers’ case and adds it would be “unauthorised judicial lawmaking if the court banned Government records from the public eye when Parliament had no such intention.” Justice KM Joseph in a separate but concurring judgment said the court had before it allegations of wrongdoing by the “highest echelons of power”. Chief Justice Gogoi reasoned that the Right to Information (RTI) Act any way has superseded the colonial OSA of 1923. The RTI Act champions transparency and accountability in governance. The RTI mandates disclosure of even secret government records in greater public interest. The court refers to its previous judgments starting from Romesh Thappar’s case. The judge pointed out how Section 24 of the Act provides that allegations of corruption as well as human rights violations should not be exempted from disclosure under law.
The court would now proceed to hear the Rafale petition on merits. It would examine several published documents. The response of N Ram, chairman of the Hindu Publishing Group, to the court’s order/judgment is noteworthy. He says, “It is extremely significant that the Supreme Court says in the judgment written by the Chief Justice that our publication of the documents ‘reminds the court’ of its own consistency in upholding the freedom of Press in a long line of decisions from Romesh Thappar vs. State of Madras and Mr Brij Bhushan vs. State of Delhi.”
In yet another case, the Supreme Court has shown ingenuity of the judiciary in devising an interim arrangement in the case challenging the validity of electoral bonds. The electoral bonds are issued in the nature of a promissory note, which shall be a bearer banking instrument and shall not carry the name of the buyer or the payee. The Department of Economic Affairs, Ministry of Finance, promulgated the Electoral Bond Scheme, 2018 through a notification under Section 31(3) of the Reserve Bank of India Act. The court was primarily hearing the challenge to the validity of the electoral bonds and passed an interim order last Friday. A Bench led by Chief Justice Gogoi said the issue of electoral bonds and their lack of transparency raised “weighty issues with tremendous bearing on the sanctity of the electoral process in the country.” The court acknowledged that the challenge to the scheme would require an in-depth hearing and there was very little time for that now. The interim order was passed to ensure that the balance was not tilted in favour of any particular party during the pendency of the writ application. The court ordered the political parties to forthwith provide the Election Commission detailed particulars of the donors as against each bond and the amount of such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit. The details of further transactions made through electoral bonds till last day of their issuance should be filed before May 30, 2019 in a sealed cover and will remain in the custody of the Election Commission, which will abide by such orders as may be passed by the court. The Government had argued that the voters need not know from where the funding came for the parties. The petitioner argued that 95% of the payments through electoral bonds had been routed to the ruling party. The Government’s stand is different from that of the Election Commission. In this case, the court had devised a pragmatic method of maintaining a parity between the claims of parties and put safety valves that would protect the interest of the political system
Both these cases are of paramount importance and will have significant bearing on our sociopolitical fabric to a great extent.
(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 )
