Plain English – Concurring Joseph J (Classified Documents)

Rafale Fighter Jet Deal

read the plain english of CJI Gogoi’s opinion here

Plain English: Rafale Review Judgment on Classified Documents – KM Joseph J’s Opinion

On April 10th, a 3 Judge Bench of the Supreme Court pronounced judgment on the question of whether classified documents relied upon by the review petitioners can be placed on the Court’s record. The Bench comprising Ranjan Gogoi CJI, SK Kaul and KM Joseph JJ dismissed the Centre’s objection. The Centre had objected to placing the documents on the record.


Gogoi CJI wrote the lead opinion for himself and SK Kaul J, while KM Joseph J gave a separate, concurring opinion.


The review petitions challenging the December 14th Rafale judgment will now be heard on merits. Recall that the same Bench had delivered the 14th December judgment, which dismissed an enquiry into the Rafale deal. Then, during the review hearings in March, Attorney General KK Venugopal had objected to review petitioners’ reliance on certain documents, on the ground that they were critical to national security and were illegally procured. He had further reiterated that the documents are protected under the Official Secrets Act and requested the Court to remove them from the record. He had also argued that for national security documents falling under the Official Secrets Act, any disclosure can be withheld even under the RTI Act.



In his opinion, KM Joseph J established that neither the Indian Evidence Act, 1872 nor the Official Secrets Act, 1923 prevent the Court from placing on record the documents in question.
Privileged Documents under Section 123 of the Indian Evidence Act (IEA)

KM Joseph J first addressed the governments’ claim that the review petitioner’s reliance on leaked documents violates Section 123 of Indian Evidence Act. He established that there are two kinds of privileged documents that cannot be published under Section 123 of IEA:

  1.  “a class of documents” that cannot be published irrespective of content
  2. documents which cannot be published due to its content.

Referring to State of UP v Raj Narain and Doypack System Pvt. Ltd v UOI , he stated that  the “class of documents” that are immune from being published are cabinet meetings, minutes of discussion between Department Heads, high level inter-departmental communications and ambassador dispatches.


KM J inferred that the documents in question are not protected as “a class of documents”, but rather belong to the latter category, where disclosure is dependent on the content of the document. He explained that the underlying principle behind Section 123 of IEA is that public interest is better served by preventing the publication of such government documents.


Next, he established how the Court ought to approach the question of assessing whether disclosure is in the larger public interest. He quoted from SP Gupta v UOI where the court observed, “…whenever an objection to the disclosure of a document under section 123 is observed, two questions fall for the determination of the court, namely, whether the document relates to affairs of the State and whether, its disclosures would, in the particular case before the court, would be injurious to public interest. The court in reaching its decision on these questions has to balance two competing aspects of public interest, because the document being one relating to the affairs of the State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand, if it is not disclosed, the non-disclosure would thwart the administration of justice by keeping back from the court a material document” (Para 72). Thus, he clarified that there are two notions of public interest – one that relates to the “proper functioning” of a public service and the other that relates to court examining a material document.


He established that only the Court can decide which notion of public interest has more weight in this instance. Thereby, he stated that the documents must be placed on the record, such that the Court can determine whether it is in the net public interest to admit the documents. He clarified that even for the “class of documents” which are immune from disclosure (the first kind), there is no bar on the Court to look at the documents to see if public interest justifies their disclosure.


Exemption from Disclosure under the Right to Information Act

Curiously, KM Joseph Jpointed out that the government never pressed the contention that the documents in question fall within the scope of the constitutional embargo under Article 74(2) which prohibits disclosure of any advice tendered to Presidents by Ministers. The corresponding provision under Section 8(1)(j) of the Right to Information (RTI) Act, 2005, prohibits RTI disclosure of “cabinet papers including records of deliberations of the Council of Ministers, Secretaries and Other Officers.”


Joseph J noted that as Article 74(2) of the Constitution and exemption clause 8(1)(j) of RTI Act have not been raised; the court did not go into the scope or ramifications of these provisions in the context of admissibility of government documents.


Next, Joseph J discussed the scope of exemption from public disclosure under 8(1)(a) of the RTI Act.  The provision prohibits disclosure of any information to citizens that would affect the sovereignty and integrity of the nation or security of the State.


He paired section 8(1)(a) with Section 8(2) which says that even in matters exempted under 8(1)(a), the concerned authority can disclose information if he/she thinks that public interest justifies such disclosure. He noted that there is no absolute bar under the RTI to seek information pertaining to an area that can affect security or sovereignty provided the concerned authority on balancing of competing public interest decides in favor of disclosure


Joseph J held that if the Officer of a government department is permitted under the RTI to disclose information in respect of matters falling under Section 8(1)(a), then the Court can also do so. He stated that  the Court cannot be prevented from inspecting the said documents, on the ground of government privilege under Section 123 of IEA. He rhetorically asked, “Could it be said that what an Officer under RTI can permit, cannot be allowed by a court and that too superior courts under section 123 of the Evidence Act?” He concluded that after the broadening of citizens right to know through RTI Act, the same also applies to Courts to admit evidence which could have been previously been privileged under section 123 of IEA.


Lastly, he referred to Section 22 and 24 of the RTI Act to reject the government’s claim that subject matter falling within the security and defense intelligence are outside of the ambit of RTI disclosures in all matters. Section 22 reads that provisions of the RTI Act would override any inconsistent provision under the Official Secrets Act.


Further, he stated that while Section 24(1) of the RTI Act exempts certain security organizations from RTI obligations, the proviso to the section says that RTI requests would be applicable to information pertaining to allegations of corruption and human rights violations.  The proviso to Section 24(1) of RTI Act makes it clear that though information relating to certain Security Organizations are exempted, information sought in matters of corruption allegations are to be disclosed under the RTI Act.


Joseph J noted that the review petitions have arisen out of a petition which has made corruption allegations against high ranking officials, and in that case, the argument of privilege in regard to the said documents cannot be allowed.

The Court dismissed the preliminary objections raised by the Union. The Union had argued that 3 sets of document being relied upon by the review petitioners should not be placed on the record. The Court placed the documents on the record and held that the review petitions would be heard on merit by looking into them.