Two 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 examining 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 duration 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 implications for transparency in judicial appointments 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 seeking 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 information provided to it by the government.

A review petition was filed by some of the original petitioners against this judgment, 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 published 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 correctness or validity of the documents, but to claim that the documents were protected by the OSA and had been published in breach of the act. The Attorney General’s argument was met with some incredulity 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 mystified 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 information public. It was about as clear and unequivocal a statement on these matters as one could get from the Court.

But, when it came to electoral bonds, the Court hesitated.

Electoral Bonds

The controversies over electoral bonds are well known (Rathee 2019). The provisions of law, across several different statutes, introduced under the Finance Act, 2017, enabling the sale and purchase of electoral bonds (apart from those mandating anonymity and immunity to purchasers) were challenged by the Association for Democratic Reforms and others as being unconstitutional. In addition to the main relief, the petitioners wanted the Court to put a halt to the scheme during the course of the elections.

In its order delivered on 12 April 2019, the Supreme Court, while noting that the issue required fuller hearing, passed an interim order directing political parties to share all details of electoral bonds with the ECI by 30 May 2019. Curiously, the Court insisted that the information be submitted to the ECI in “sealed covers.”

While the Court ostensibly tried to “balance” the interests of the parties before it, its order is ultimately ineffective. While going into some detail about the legal provisions relating to electoral bonds, it has failed to notice that political parties are unlikely to have too much useful information to hand over to the ECI. Given that the electoral bond is a bearer bond, a political party is unlikely to have any details beyond the number of the bond, the amount, and the bearer who handed it over. Unless this is tallied with the Know Your Customer details available with the State Bank of India (collected at the time of giving out the bond), there is no clarity as to who is actually funding any political party in question. Unfortunately, the order is silent on this aspect and undermines whatever impact the Court intended to have with such an order. Ahead of the 2019 general elections, it is not exactly a win for transparency in the election process.

What Next for Transparency?

How do we make sense of the judgments in the Rafale Papers case and the Electoral Bonds case? Both were delivered by more or less the same bench and within a few days of each other. Both are essentially interim orders, while the main cases remain to be decided. Whereas the Supreme Court was unstinting in its support of transparency in the Rafale Papers case, it was much more circumspect when it came to the Electoral Bonds case.

One way to make sense of this is to see what transparency actually implied in either case. In the Rafale Papers case, the information was already public and there was no hint of the government prosecuting the Hindu or anyone else for making it so. Rather, what the government’s argument was meant to do was to restrict judicial scrutiny of the papers in question. The Attorney General’s argument, if accepted, would have meant that the Supreme Court could not have considered the contents of the documents published by the Hindu, even though everyone else could read it and make up their own minds. In effect, the Court has only reiterated its power to look at all relevant material in a case irrespective of how it was obtained.

When it came to electoral bonds, the Supreme Court misguided itself by looking to balance the interests of the parties to the litigation. While this is no doubt a consideration that must apply in regular litigation, what the Supreme Court failed to appreciate was that since this was a public interest litigation (PIL), it was the interest of the public on the one side and the interests of political parties (and their paymasters) on the other. In passing the order that it did, the Supreme Court has in no way protected the public’s interests in knowing who has funded political parties. It has, to some extent, ensured that the ECI does not entirely lose its power of supervision over political parties’ fundraising, but that is about it.

Will the Supreme Court throw open its own doors to transparency in the context of the RTI? To be clear, the crux of the debate has hinged upon judicial appointments and the bases of decisions, on whether or not to appoint a judge, not being made public. While the Delhi High Court had held that the office of the CJI was indeed covered by the RTI Act (CPIO, Supreme Court of India v S C Agrawal, 2009) the Supreme Court was itself less sure, staying the judgment of the high court for nearly nine years before it was finally heard by a constitution bench. The courtroom exchanges during the constitution bench hearing the appeal suggest that the judges are not entirely hostile to the idea of transparency, but a certain defensiveness is evident (Jain 2019).

Whichever way the judges decide, it is wise to keep in mind that the Supreme Court is under far greater scrutiny on a daily basis than it has ever been in its entire history. Proceedings are live-tweeted, acres of newsprint and gigabytes are devoted to commentary and criticism of the Court, and there is a constant pressure to live-stream proceedings as well. To its credit, the Court has slowly, but surely increased some of the information it puts out to the public, especially in the matter of appointments, mostly in reaction to controversies that have broken out over appointments.

Rather than take such a reactive and somewhat defensive approach to transparency, the Court should carry forward its rhetoric in the Rafale Papers case and embrace it. While the public may debate and disagree with the choices of judges, faith in the institution will only improve if there is a sense that it has nothing to hide.