The Rafale deal controversy was the most talked about topic of the era. An unclear agreement of the price of Rafales aircraft bought by the Indian government gave rise to the case. It was basically a political conflict where the freedom of the press created a realm of a threat to the security, sovereignty and national integrity of the country. The Chairman of  ‘The Hindu’ publishing group, N.Ram was alleged to have stolen the official documents of the agreement of the Rafale deal. The government tried to hold the publishing media liable under the Official Secrets Acts, 1923 which deals with the espionage or spying of official confidential information or documents.

BACKGROUND OF THE CASE:

Rafale is a twin-jet fighter aircraft which has the function to operate from an aircraft carrier as well as shore base. It is well equipped in air superiority and defence, anti-ship strikes, in-depth strikes, nuclear deterrence and resonance. It has the capacity to carry out a wide range of short and long-range missions. Rafale is designed and manufactured by Dassault Aviation, a French aerospace company.  In January 2012, Indian Air Force (IAF) in the Medium Multi-Role Combat Aircraft (MRCA) competition made a deal to get supplies of 126 multi-role combat aircraft along with 63 additional aircraft.

Later, in 2014 it was decided that complete manufactured 18 aircraft by Dassault Aviation will be received after which the rest 108 aircraft will be manufactured by the Hindustan Aeronautics Limited (HAL) under issued licence but the agreement did not satisfy the French company. In 2015, a fresh agreement was made where 36 aircraft were considered by France. Soon, by September 2016, Mou was signed by India and France for 36 Rafale aircraft to be delivered by 2022 and intergovernmental agreements were also cleared. The price of each aircraft stated in the parliament was approximately 670 crores only. The price released by the Dassault Aviation was 6000 crores which were even more than double the amount quoted by the government.

In 2018, PIL was filed by Advocate ML Sharma, lawyer Vineet Dhanda, Sanjay Singh, MP of AAP and Yashwant Sinha in the Supreme Court against the government to showcase the details of the agreement made for the 36 Rafale jets in a sealed cover. During the investigation period of the agreement, ‘The Hindu’collected the details and published the documents of the deal in the media which were sensitive and confidential in nature.

CASE SUMMARY:

The Rafale deal case is also known as Manohar Lal Sharma vs Narendra Damodar Das Modi case. The judgement bench included Justice K.M Joseph, Justice Ranjan Gogoi and Justice Sanjay Kisan Kaul. In November 2018, the plea filed by the litigants was dismissed by the court on the investigation of the details of the agreement based on the documents presented by the government in a sealed cover. Again in February 2019 a review petition was filed based on the documents published by ‘The Hindu’ which showed a disparity in the details of pricing of the Rafale flight jets.

On the release of the documents, various questions were raised on the decisions of the Prime Minister’s office. The Indian negotiating team termed the agreement to be a ‘parallel negotiation’. A preliminary objection by the Union government to review the petitions on the basis of the published documents was thereby rejected by the Supreme Court. The former  Chief Justice of India, Ranjan Gogoi dismissed the review as the documents were not reasonable and were considered a part of the conspiracy. The collected documents by the media were photocopies of the original document kept in the Ministry of Defence. The Attorney General of India, K.K. Venugopal said that the petition was not subjected to review in the support of stolen unauthorised documents.

The Ministry of Defence through Advocate R. Balasubramaniam filed an eight page-affidavit, though it did not mention ‘The Hindu’ directly, it said: “ Those who have conspired in this leakage are guilty of penal offences under Indian Penal Code, including theft by unauthorised photocopying and leakage of sensitive official documents affecting national security.”   The court said that it has brought a criminal action under the Official Secrets Act, 1923 (OSA).

Later, Justice Joseph said that the Right to Information Act, 2005 has overpowered the release of the documents’ secrecy under the Official Secrets Act. The review petition was then wrapped and dismissed in November 2019 denying the fact that it was stolen or conspired. Therefore, the Supreme Court closed the case of the 36 Rafale fighter jets.

DATA BREACH UNDER THE OFFICIAL SECRETS ACT:

Section 5 of the Official Secrets Act mentions any code, model, plan, sketch, document or article of official nature is protected. If any such documents are published or made public intentionally or without any intention are held to be liable under the Official Secrets Act. No unauthorised person has the right to enter the area recognised as an official area. The documents procured by ‘The Hindu’ during its investigation were subjected to offences under the act. The document was the photocopy of the original agreement document of the government and Dassault Aviation. It was claimed by the Ministry of Defence that the documents were stolen from the premises. Moreover, the documents were published in the media platform of ‘The Hindu’.

The government alleges that the security of the nation is at stake. The release of the document has breached a confidentiality agreement with France and has disclosed the prices of the Rafale jets. The mismanagement of the data will affect the sovereignty and security of the county. Furthermore, it may have a negative impact on the friendly relation of India with the other countries as well.

THE OFFICIAL SECRETS ACT OVERRULED:

N. Ram, the chairman of ‘The Hindu’ gave a strong response to the allegations made by the central government. He mentioned that the document was received in the public interest through investigative journalism. The publication of the document does not make the media liable under the Official Secrets Act, 1923 as it is overridden by the Fundamental Right and the  Right to Information Act, 2005.

• Article 19 (1)(a) of the Constitution of India states that every citizen shall have the right to freedom of speech and expression and freedom of the press is implied from that right.

• Section 8 (1)(a) of the Right to Information, 2005 says that public authority is not under obligation to furnish the information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State,  relation with foreign State or lead to incitement of an offence.

• Section 8 (2) of the Right to Information, 2005 states that even where an exemption provision or the Official Secrets Act applies, an official will still need to disclose the information requested ‘if the public interest in disclosure outweighs the harm to the protected interests’

• Section 22 of the Right to Information, 2005 provides that the Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

The Editors Guild of India, an organisation of editorial leaders which protects the freedom of the press and increases the standard of editorial leadership said that the Official Secrets Act against journalists would be reprehensible.

CONCLUSION:

The Rafale deal controversy was stretched over a long period of time to reach its conclusion. The sole purpose of ‘The Hindu’ was to exercise the duty to inform the public about the details of the document which was creating a fuss among the people. The document was published only as a part of investigative journalism. The Official Secrets Act is a colonial-era law which was used by the Britishers to protect them from the newspapers and journals to publish any kind of secret or confidential information against them. The law needs to be changed as with the implementation of the Right to Information Act many provided provisions have become a contentious issue. But however, with days the matters concerning secrecy and privacy is no doubt increasing. In such circumstances, complete removal of the Act will bring more complications, therefore the Law Commission should try to make the Official Secrets Act more strict and powerful.