LAW & SOCIETY APRIL 20, 2019 vol lIV no 16 EPW Economic & Political Weekly 10 Alok Prasanna Kumar (alok.prasanna@ vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru. Supreme Court on Rafale Papers and Electoral Bonds One and a Half Cheers for Transparency Alok Prasanna Kumar The Supreme Court’s judgments in the Rafale Papers and the Electoral Bonds cases suggest that it is alive to the need for upholding transparency when it comes to the freedoms of the press and the funding of political parties. This is, however, not a consistent position and, in the Electoral Bonds case, the Supreme Court has hedged its bets to some extent. It remains to be seen, however, if the Court will extend this demand for transparency to its own functioning. T wo key judgments were delivered by the Supreme Court in the span of one week that will have a profound effect on the fight for transparency in public institutions. In Yashwant Sinha v Central Bureau of Investigation (2019; the “Rafale Papers case”), the Supreme Court held that the Official Secrets Act, 1923 ( OSA) will not prevent a court from exam- ining official documents that had been made public by a newspaper and—unless a category of information was expressly excluded from disclosure under the Right to Information Act, 2005 ( RTI )—these ought to be looked into by the court. A couple of days later, in Association for Democratic Reforms v Union of India (2019; the “Electoral Bonds case”), the Supreme Court passed an interim order directing that political parties were required to provide the Election Commission of India (ECI) all the details of funding received by them through the “electoral bonds” scheme. Though it fell short of the demand of the petitioners to halt the scheme for the dura- tion of the elections, it has made what was a voluntary obligation for parties, mandatory. Any discussion on transparency would not be complete without mentioning a third case. In CPIO, Supreme Court of India v S C Agarwal (2019), a constitution bench of the Supreme Court has just reserved judgment on the question of whether the office of the Chief Justice of India (CJI) is an “authority” for the purposes of the RTI Act (Economic Times 2019). The implica- tions for transparency in judicial appoint- ments and accountability are obvious. What the Supreme Court will do remains to be seen, but, perhaps, the Rafale Papers and the Electoral Bonds cases might give us some guidance. In this column, I propose to critically examine what the Supreme Court has held in these two cases and what they portend for transparency in the judiciary. Rafale Papers The judgment in the Rafale Papers case came about in a somewhat convoluted set of circumstances. The Supreme Court initially dismissed the writ petition seek- ing an inquiry into the Rafale jet fighter deal for potential criminality (Manohar Lal Sharma v Narendra Damodardas Modi 2019). In doing so, it delivered a judgment riddled with errors and based on patently incorrect statements, relying on infor- mation provided to it by the government. A review petition was filed by some of the original petitioners against this judg- ment, attaching documents—unearthed by the Hindu newspaper suggesting that the negotiations with France had been undermined from the Indian side—that were sought to be brought on record. In a series of articles, the Hindu had pub- lished documents purporting to be from the Ministry of Defence relating to some of the key clauses of the Rafale fighter jet acquisition, especially those which showed a deviation from the standard practice in such defence acquisitions (Ram 2019). The government’s first response to the review petition was not to deny the cor- rectness or validity of the documents, but to claim that the documents were pro- tected by the OSA and had been published in breach of the act. The Attorney Gener- al’s argument was met with some incredu- lity by the judges who, as their judgment indicates, found little legal merit in it. At a time when the RTI Act has expressly overruled the provisions of the OSA in most respects, the Court was rightly mys- tified by the Attorney General’s arguments and proceeded to dismiss all his arguments against the Rafale papers. In doing so, the Court, and specifically Justice K M Thomas, highlighted the importance of transparency and the role of a free press in preserving constitutional democracy. Justice Joseph notes the paradigm shift that the RTI Act brought about in the manner in which the government was supposed to make infor- mation public. It was about as clear and unequivocal a statement on these matters as one could get from the Court.