RTI Act Dilutes Governments's Claim Of Privilege, Holds Justice K M Joseph In Rafale Review

Justice K M Joseph's concurring judgment in the Rafale review judgment, which rejected Centre's objections against relying on the documents presented by the petitioners, underscores that after the enactment of Right To Information Act, public have more right to demand disclosure from government even in respect of matters covered by national security and foreign relations.

"The RTI Act through Section 8(2) has conferred upon the citizens a priceless right by clothing them with the right to demand information even in respect of such matters as security of the country and matters relating to relation with foreign state", Justice Joseph said in the judgment. However, it was clarified that the information cannot be obtained at the mere asking and that "the applicant must establish that withholding of such information produces greater harm than disclosing it".

The Attorney General's arguments based on protection under Official Secrets Act 1923(OSA) and privilege under Section 123 of the Indian Evidence Act failed because of the application of RTI Act, particularly Section 8(2), 23 and 24 of it.

The Court noted that Section 8(2) said that none of the exemptions under Section 8(1) and the Official Secrets Act will come in way of disclosure of documents if there is overriding public interest.

"Section 8(2) of the Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub-section(1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows, the harm to the protected interests".

"What interestingly Section 8(2) recognises is that there cannot be absolutism even in the matter of certain values which were formerly considered to provide unquestionable foundations for the power to withhold information. Most significantly, Parliament has appreciated that it may be necessary to pit one interest against another and to compare the relative  harm and then decide either to disclose or to decline information".

Also, Section 22 gives an explicit overriding effect to RTI Act over OSA. Further, the proviso to Section 24 stated that even in respect of intelligence and security organizations, claim of non-disclosure will be available if the information pertains to allegations of corruption and human rights violations.

"The first proviso to Section 24 indeed marks a paradigm shift, in the perspective of the body polity through its elected representatives that corruption and human rights violations are completely incompatible and hence anathema to the very basic principles of democracy, the rule of law and constitutional morality. The proviso declares that even though information available with intelligence and security organisations are generally outside the purview of the open disclosure regime contemplated under the Act, if the information pertains to allegations of corruption or human rights violations such information is very much available to be sought for under the Act".

Tracing the legislative wisdom behind this, Justice Joseph said;

"The economic development of a country is closely interconnected with the attainment of highest levels of probity in public life. In some of the poorest countries in the world, poverty is rightfully intricately associated with corruption. In fact, human rights violations are very often the offsprings of corruption. However, the law giver has indeed dealt with corruption and human rights separately".

Section 24 of the Act also highlights the importance attached to the unrelenting crusade against corruption and violation of human rights The Court cannot be wholly unaffected by the new regime introduced by Parliament under the RTI Act on the question regarding a claim for privilege,observed the judgment.

So, if the RTI Act can compel the disclosure of highly privileged information on the basis of overriding public interest and allegations of corruption , can the Court be prevented from examining the materials? "Could it be said that what an officer under the RTI Act can permit, cannot be allowed by a court and that too superior courts under Section 123 of the Evidence Act", wondered Justice Joseph.

When claim of privilege shields criminal prosecution.

The judgment also analysed the impact of a claim of privilege on a citizen's right to expose wrong doings on part of government functionaries.

In this regard, Justice Joseph distilled the law on the claim of privilege in the following manner, referring to judgments in Raj Narain and S P Gupta cases.

• Claim of privilege can apply to a class of documents, irrespective of its contents
• It is based on principles of 'candour' and 'frankness' to enable officers to express their views in internal communications without fear
• Claim of privilege is not intended to protect minsters and government functionaries from criticism, however unreasonable, ill-informed or intemperate they may be. Instead, the objective is to ensure smooth functioning of government.
• While considering a claim of privilege, the Court has to balance two aspects of public interest - the harm which may be caused to the State due to disclosure and the harm which may be caused due to non-disclosure.

Justice Joseph hinted that a claim of privilege may come in way of a citizen's legitimate efforts to gather evidence in a prosecution against Government for wrong doing. 

"The most important aspect in a justice delivery system is the ability of a party to successfully establish the case based on materials. Subject to exceptions it is settled beyond doubt that any person can set the criminal law into motion. It is equally indisputable however that among the seemingly insuperable obstacles a litigant faces are the limitations on the ability to prove the case with evidence and more importantly relevant evidence. Ability to secure evidence thus forms the most important aspect in ensuring the triumph of truth and justice. It is imperative therefore that Section 8(2) must be viewed in the said context. Its impact on the operation on the shield of privilege is unmistakable".

In this regard, reference was made to the observations of Justice Stephen of High Court of Australia in Sankey v.Whitlam , which essentially said the following things :

• Conferring privilege may amount to granting immunity to those occupying high offices in respect of their wrongful conduct
• Such a claim may be pressed into service to ensure the dismissal of a case against government officials for want of evidence.
• It is inappropriate to uphold a claim of privilege against a prosecution against government for wrong-doing. 
• It should be ensured that claim of privilege should not unecessarily impede the course of justice.

Justice Joseph observed that these observations are relevant in the instant case as well, since the complaint raised in the review petitions is that "there has been grave wrong doing in the highest echelons of power and the petitioners seek action inter alia under the provisions of Prevention of Corruption Act".

It was further noted that the correctness of the documents were not disputed by the Government; it was also not disputed that the documents were already published. 

"The documents in question have been published in 'The Hindu', a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned. Lastly, the case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and as already noted the state does not take objection to the correctness of the contents of the documents".

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