Supreme Court’s decision exposes attempts to de-legitimise investigative journalism

The Supreme Court’s decision to consider the relevance of the documents published in the media on the Rafale deal is a firm and necessary rebuff to the Central government’s attempts to prevent judicial examination of these papers and to de-legitimise all investigative journalism on the subject. The court’s unanimous verdict, rendered in two concurring orders by a three-judge Bench, means that review petitions filed against earlier orders declining an investigation into the purchase of Rafale jets will now be taken up on merits and that the petitioners are free to rely on these documents, regardless of their provenance. These documents include those published by The Hindu. A dissenting note by members of the India Negotiating Team, and notes that disclose unease in the Defence Ministry over parallel negotiations at the PMO’s instance undermining the official parleys are among them. It would have been a travesty had the government succeeded in blocking judicial scrutiny of these documents, as they disclose significant details about the decision-making process. The government’s desperate attempts to prevent the court from relying on these papers included a claim of privilege under the Evidence Act, a threat of invoking the Official Secrets Act (OSA) and an accusation that the published documents were “stolen” ones. Later, it toned down the allegation by saying the original documents had not been stolen, and what were published were unauthorised photocopies. None of these claims impressed the court, which relied on the principle that how a piece of evidence is obtained is immaterial, as long as it is relevant to adjudicating an issue.

The decision on the admissibility of the documents has significance beyond the Rafale issue: it revivifies the rights of a free press and underscores the principle that it is public interest, and not the content of a document alone, that will decide whether disclosure is needed or not in a given case. Referring to the publication of the Rafale documents in The Hindu, Chief Justice Ranjan Gogoi observed that “the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. Citing the U.S. Supreme Court decision on the Pentagon Papers, he noted that neither the OSA nor any other law vests any power in the executive to stop publication of documents marked ‘secret’ or the placing of such documents before a court of law which may be called upon to adjudicate a legal issue. It is premature to conclude, based on this development, that the court’s earlier decision to not order a criminal investigation into the purchase of 36 Rafale jets will be revisited. However, it will certainly help provide clarity on several aspects of the murky deal. Had the government agreed to a parliamentary probe early on, it would not be suffering the sort of setback it has now faced in the Supreme Court.