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Tuesday 7 April 2020

How Prashant Bhushan got favourable Supreme Court decision on Rafale docs

Activist-lawyer Prashant Bhushan gave the example of The Hindu story, the CAG report and examples from history to show to what extent a document can be considered confidential

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New Delhi: The Supreme Court has decided to hear the petition in the Rafale case on the basis of new documents that were published by The Hindu, notwithstanding the allegation that the newspaper’s former editor N Ram might have cropped out an important note from it. The ruling has provided activist-lawyer Prashant Bhushan a shot in the arm.

A three-judge bench said on Wednesday that the review petition will be heard on the basis of those new documents that have come in the public domain.

The Union government’s objection in this regard has been overruled. The three-member bench, headed by CJI Ranjan Gogoi, comprises Justice SK Kaul and Justice KM Joseph.

The Supreme Court will now decide a new date for the hearing of the review petition. In the Rafale case, the court had to decide whether leaked documents were admissible evidence.

The Centre had opposed the hearing on the basis of that the document was not authenticated.

The government had said that these documents were privileged (confidential) and, hence, the review petition must be dismissed. However, during the hearing of the Supreme Court, Justice Joseph said that the RTI Act came in 2005 and it was a revolutionary step (that brought out several documents in the public domain that were hitherto hidden from the people in the name of maintaining official secrecy); so “we cannot go back”.

How arguments of Bhushan were stronger than govt’s

The government had said that the document that Prashant Bhushan presented with the review petition was confidential, not fit to be subjected to the RTI and that it was confidential also under the Evidence Act. Under the Indian Evidence Act, confidential documents cannot be put in the public domain.

What is intriguing is why Attorney-General KK Venugopal did not stress the reportedly fraudulent means that Ram had adopted to suppress part of the truth in his report in The Hindu. The report had led thousands of Twitter users to shaming Ram for sham journalism.

The documents that are related to national security, affecting the relations of the two countries have been considered as confidential documents. Under Article 19 (2), it is a matter of genuine restraint on the right of expression.

Where there is a matter related to the security of the country, it will come under the purview of secrecy.

Under the RTI, a case related to the country’s sovereignty is considered an exception. Section 3 and 5 of the Official Secrets Act provides for confidentiality too.

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Documents already in public domain, Bhushan argued

Meanwhile, lawyer Bhushan has said that all these documents are already in the public domain. Documents that are prohibited from being brought in the public domain under the Evidence Act are those that are still confidential and have not been published, Bhushan argued.

The Central Government has not yet filed cases about the alleged leak. The controversial Hindu report was published on 18 November.

Bhushan argued further that the government has tabled the CAG report on Rafale in Parliament. There is information related to the defence deal. How can the documents presented now be called a privileged document, the lawyer asked.

The press council says that media workers are not obliged to tell the source. In a dispute related to SP Gupta, the Supreme Court had given a judgment saying whether a document is confidential is decided by how it would impact the security of the country.

The government has itself been leaking such information, Bhushan alleged. File notes of the defence minister were leaked in the same way, he said. In the 2G and coal block cases, the documents came in the public domain and the Supreme Court said that there was no need to bring the name of the whistle-blowers out. If the document is necessary for the case, its admissibility is justified.

Related

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‘Confidentiality not above public interest’

Bhushan said that the Pentagon’s documents related to the Vietnam War came in the public domain. The Supreme Court had given its verdict and the plea of ​​keeping the document confidential due to the national security of the US government was rejected, he argued.

The government’s plea is prejudiced and is not going to hold because the document cannot be kept under the purview of privilege as it is already published. If the document is justified for a case of corruption, it does not matter where it was brought from.

The court had dismissed the application against the Rafale deal on 14 December 2018, after which a review petition was filed, which was heard in the open court. The case was heard by a bench of Chief Justice Ranjan Gogoi, Justice SK Kaul and Justice KM Joseph.

On 14 March, the court reserved the order on the central government’s objection to hearing a review petition while considering a privileged document.

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