Press Freedom, Public Interest & More: SC’s Rafale Review Decision

The SC said that the Official Secrets Act and national security do not come in the way of admitting the evidences.

SC has dismissed the Centre’s preliminary objections to the Rafale review petitions.

(Photo altered by The Quint)

As the Supreme Court on Wednesday, 10 April, allowed admissibility of “classified” documents as evidence in the case pertaining to Rafale review petitions, it made some important observations on the role of press, public interest vs national security, court’s role in upholding the Constitution and more.

“...the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents,” the court said.

Here are the key observations made by SC in the judgement:

On Freedom of Press

The judgement made it clear that the publication of the three documents in question, by English daily, The Hindu, comes within the ambit of freedom of expression and does not violate the reasonable restrictions mentioned in the Constitution.

The majority judgement by Chief Justice Ranjan Gogoi on behalf of himself and Justice Sanjay Kishan Kaul said:

“The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice.” 

Justice KM Joseph also reflected upon freedom of press, saying, “The ability of truth to be recognised by a discerning public in the supposedly free market place of ideas forms much of the basis for the grant of the unquestionable freedom to the Press including the media houses."

Interestingly, Justice Joseph also commented on the dangerous influences on press freedom in today’s day and age: "Controlling business interests and political allegiances appear to erode the duty of dispassionate and impartial purveying of information".

On Review Petition Being a Threat to National Security

The three-judge bench also dismissed the Centre’s argument that the review petition is a threat to national security, saying that the judiciary's job is to uphold the Constitution.

CJI Gogoi and Justice Kaul referred to the Kesavananda Bharati vs State of Kerala case, where the SC had observed: “Judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour.”

Justice Joseph dismissed the objection put up by the Centre under the Section 8(1)(a) of the Right to Information Act, which gives the government the authority to not divulge information that affects the sovereignty, integrity and security of the country.

He quoted Section 8(2) of the same Act, which says that access to information needs to be provided if “the public interest in disclosure overshadows the harm to the protected interest.”

Justice Joseph’s concurring judgement goes into some detail in describing how the RTI Act was enacted by Parliament to “strengthen democracy” and “introduce the highest levels of transparency and openness.” Looking at the content of provisions like Section 8 along with Sections 22 and 24 of the RTI Act, he concludes that it would trump the Official Secrets Act and that because of it “disclosure of information can be refused only on the foundation of public interest being jeopardised.”

On Official Secrets Act

CJI Gogoi and Justice Kaul’s judgement also said there is no legal provision that could stop publication of a document marked as 'secret', or restrain such papers to be submitted in the court.

“There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.”

On ‘Privilege’ Under Indian Evidence Act

Representing the Centre, Attorney General KK Venugopal had objected to the petitioners’ reliance on the documents by saying that they were 'stolen' from the Ministry of Defence and that they were protected by 'privilege' under Section 123 of the Indian Evidence Act.

CJI Gogoi wrote that Section 123 applies to documents that are not in the public domain, not those already published.

“As already noticed, the three documents have been published in different editions of The Hindu newspaper... a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value.”