The concurring judgment authored by Justice KM Joseph in the Rafale matter today has various interesting facets.

Besides speaking about the bias that has crept into the media in India, justice Joseph has stressed on the significance of RTI and has used the RTI jurisprudence to rebut claims of privilege claimed by the Central government over the controversial documents.

Most interestingly, he has placed reliance on the judgment rendered by his own father Justice KK Mathew in the case of State of UP v. Raj Narain.

Excerpts from the judgment below.

Freedom of press and bias displayed by media today

Before going into the legal issues involved in the case, Justice Joseph chose to elucidate the significance of freedom of press while also laying bare the bias that has crept into the media in India.

“The Press in India has greatly contributed to the strengthening of democracy in the country. It will have a pivotal role to play for the continued existence of a vibrant democracy in the country. It is indisputable that the press out of which the visual media in particular wields power, the reach of which appears to be limitless.”

However, freedom involves many elements.

“A free person must be fearless. Fear can be of losing all or any of the things that is held dear by the journalist. A free man cannot be biased. Bias comes in many forms.”

Continuing on the importance of being free from bias, Justice Joseph states that the Press including the visual media cannot be biased and yet be free.

If freedom is enjoyed by the Press without a deep sense of responsibility, it can weaken democracy, he states.

He then minced no words while stating that a disturbing trend of bias has crept into the media and business interest and political allegiances have eroded the duty of impartial purveying of information.

“In some sections, there appears to be a disturbing trend of bias. Controlling business interests and political allegiances appear to erode the duty of dispassionate and impartial purveying of information.”

Claim of Privilege, RTI and legal revolution

The next aspect of Justice Joseph’s judgment is his rebuttal to the claim by the Central government regarding privileged documents/ communication.

This he does by placing reliance on the RTI Act and the “legal revolution” it has introduced.

“With the passing of the Right to Information Act, the citizens fundamental right of expression under Article 19(1) (a) of the Constitution of India, which itself has been recognised as encompassing, a basket of rights has been given fruitful meaning.”

Justice Joseph analyses the law as it stands today with respect to the privilege claimed by the Central government over the disputed documents

In India, Section 123 of the Evidence Act read with Section 124 and Section 162 does provides for the statutory basis for a claim of public interest privilege, the judgment notes. Besides the above, there is the constitutional embargo contained in Article 74(2) of the Constitution.

To counter the submissions of the Central government which was based largely on Section 123 of Evidence Act and provisions of Official Secrets Act, Justice Joseph in his judgment placed reliance on Sectional 8(2) and proviso to Section 24 (1).

On Section 8(2) the judgment says,

“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.”

As per Section 8(1)(a) information the disclosure of which will prejudicially affect the sovereignty and integrity of India, the security and strategic security and strategic scientific or economic interests of the State, relation with foreign State or information leading to incitement of an offence are ordinarily exempt from the obligation of disclosure.

However, even in respect of such information Parliament has advanced the law in a manner by giving recognition to the principle that disclosure of information could be refused only on the foundation of public interest being jeopardised.

The judgment states that the Parliament has pitted one interest against another and to compare the relative harm and then decide either to disclose or to decline information.

“It is not as if there would be no harm. If, for instance, the information falling under clause (a) say for instance the security of the nations or relationship with a foreign state is revealed and is likely to be harmful, under the Act if higher public interest is established, then it is the will of Parliament that the greater good should prevail though at the cost of lesser harm being still occasioned.”

Likewise, the first proviso to Section 24 marks a paradigm shift in that 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.

Thus, even though Section 123 of the Evidence Act stands unamended and even though there is no unqualified right to obtain information in respect of matters under Section 8(1)(a) of the RTI Act, the Court cannot be wholly unaffected by the new regime introduced by Parliament under the RTI Act.

Reliance on the judgment of Justice KK Mathew in State of UP v. Raj Narain

To prove the point further on Section 123, Justice Joseph interestingly relies on the judgment rendered by his father, former Supreme Court judge, Justice KK Mathew in the 1975 case of State of UP v. Raj Narain.

Section 123 of the Evidence Act contemplates a situation where a party seeks the production of a document which is with a public authority and the public authority raises a claim for privilege by contending that the document cannot be produced by it. Undoubtedly, the foundation for such a claim is based on public interest and nothing more and nothing less, states Justice Joseph. He then quotes Justice KK Mathew.

“In fact, in State of U.P. VS. Raj Narain AIR 1975 SC 861 I notice the following paragraph about the effect of publication in part in the concurring judgment of K.K. Mathew,J. which reads as under:

“81. I do not think that there is much substance in the contention that since, the Blue Book had been published in parts, it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been published. No authority has been cited for the proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.”

In the instant case, documents in question have been published in ‘The Hindu’, a national daily. 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. The request of the respondents is to remove the documents from the record. Therefore, he says

“I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest”, Justice Joseph concludes.

Read the judgment below.