Official Secrets Act: India
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Publication of secret documents
SC, 2019: No law can stop media publishing secret documents
Dhananjay Mahapatra, April 11, 2019: The Times of India
Reiterating the sanctity of freedom of press, the Supreme Court ruled that neither any Parliament-enacted law nor the dreaded British-era Official Secrets Act could stop the media from publishing or the court from considering “secret” documents.
“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,” CJI Ranjan Gogoi and Justice Sanjay K Kaul said.
Justice K M Joseph, in a separate judgment, agreed with this view and the court unanimously decided to hear petitions seeking review of the December 14 verdict giving a clean chit to the NDA government in the procurement of Rafale fighter jets from France.
The apex court also trashed the government’s attempt to claim privilege over three secret documents related to the Rafale deal and attorney general K K Venugopal’s argument that their unauthorised photocopying was prohibited under the OSA and RTI Act.
Writing the main judgment, the CJI adopted the US Supreme Court’s logic in its 1971 judgment, which had refused to recognise the executive government’s right to restrain publication of ‘Pentagon Papers’. This judgment was cited and relied upon by advocate Prashant Bhushan.
CJI Gogoi cites Pentagon Papers
Dhananjay Mahapatra, April 11, 2019: The Times of India
Writing the main judgment in the Rafale ‘secret document’ case, CJI Ranjan Gogoi adopted the US Supreme Court’s logic in its 1971 judgment. The United States SC, by a 6-3 majority, had declined to pass prohibitory orders on publication of ‘Pentagon Papers’ (by New York Times) on the ground that the legislature had vested no such power on the executive and hence the court could not introduce it.
Rejecting Venugopal’s arguments dissuading the court from considering the worth and evidentiary value of the documents because of the prohibition under the Official Secrets Act, 1923, the CJI said, “We do not see how the principle of law (in the US SC judgment) will not apply to the facts of present (Rafale) case.”
The SC said the objection raised to the petitioners placing the three secret documents, which were already published in newspapers, before the court lacked common sense as the Centre did not dispute the availability of these documents in the public domain.
“No questions have been raised and, in our considered opinion, very rightly, with regard to publication of the documents in ‘The Hindu’ newspaper. 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,” the CJI said.
The SC said publication of Rafale documents reminded the court of its consistent views in upholding the freedom of press in a long line of decisions commencing from the Romesh Thapar judgment in 1950 to the Indian Express judgment in December 1984.
’Futile for Centre to claim privilege’
The Modi government had previously maintained that the Rafale documents didn’t reflect the complete picture of how the government went about the purchase of the fighter jets, and pertained to only a part of the process. It also said the issues raised in the documents were dealt with satisfactorily before the proposal to acquire Rafale jets was sent to the Cabinet Committee on Security.
Justice Joseph agreed with CJI Gogoi’s 18-page judgment but wrote a separate 38-page judgment giving elaborate reasons why the Centre’s stand claiming privilege over the three defence documents needed to be rejected. He said, “In the writ petition out of which the review arises, the complaint is that there has been grave wrongdoing in the highest echelons of power and petitioners seek action under provisions of the Prevention of Corruption Act.”
CJI Gogoi, writing for himself and Justice Kaul, said it was futile on the part of the Centre to claim privilege over the three documents and seek their deletion from court records as these were published in a newspaper and were in the public domain.
Brushing aside the AG’s argument, the CJI said since the documents were within reach of citizens, “a practical and common sense approach would lead to the obvious conclusion that it would be 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”.
The AG had also argued that certain matters, like defence procurements through inter-governmental agreements, were solely within the political domain and could not be questioned in courts.
The CJI made light of the AG’s arguments and responded by citing the SC’s landmark Keshavananda Bharati judgment of 1973, in which a 13-judge bench had carved out the inviolable ‘basic structure’ of the Constitution. “That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that 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 and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision,” it said.
