A matter of statutes
When the Supreme Court allowed the leaked documents as admissible in the petition seeking review of its Rafale judgement, dismissing the Centre's preliminary objections claiming "privilege" over them, a sense of restored faith was pronounced across the news media spectrum. Ever since the publications of "stolen" documents from the Ministry of Defence by The Hindu was challenged by the Attorney General in the Rafale hearing, the journalist organisations including the Editors Guild of India have actively condemned AG's statements. The government threats of using the Official Secrets Act (OSA) against The Hindu in their Rafale deal reportage as part of their investigative journalism was proved hollow by the apex court's decision. In its judgement, SC dismissed the preliminary objections raised by the government questioning the maintainability of the review petition. The CJI-led bench sidelined the Centre's argument that the documents were unauthorisedly removed from the Defence Ministry and therefore could not be relied upon. Centre backed its argument through the provisions of OSA, RTI and Indian Evidence Acts thereby claiming privilege in order to bar their disclosure in the public domain. However, in concurrent judgements, CJI and K M Joseph rejected the Centre's contentions and squashed its privilege claims. Joseph further enlightened AG on how "Section 8(2) of the RTI Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub section (1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows the harm to the protected interests". CJI further asserted how the publication of the documents in 'The Hindu' newspaper reminded the court of the consistent views of the Supreme Court in upholding the freedom of the press in a long line of decisions commencing from Romesh Thapar vs. State of Madras and Brij Bhushan vs. The State of Delhi. He also noted that the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. Justice Joseph enlightened the Centre that there was no dispute that the manner in which evidence was obtained would not ordinarily be very significant in itself in regard to the court's decision to act upon it. Welcoming the judgement, chairman of The Hindu Publishing Group, N Ram asserted how the court's approval of such publication (as in the case of The Hindu's Rafale reportage) should empower the pursuit of independent, investigative journalism by India's press. His words and similar views of many more reiterates the fact that the Fourth Estate i.e., the press and news media is bound by its dual responsibility of reporting what is in public interest and raising questions, irrespective of government in power, as part of its moral responsibility. Justice Joseph's comments that "controlling business interests and political allegiances have eroded journalistic responsibility", throws light on how journalism has been under threat in this country. Given the potential of their misuse against media and press, a re-examination of OSA and Defamation has been demanded by experts and journalist bodies.
One inference of SC's judgement on the admissibility of leaked documents earmarked the freedom of expression, the fourth estate's contribution in strengthening the democracy and how RTI effectively trumps OSA in Section 8(2), which compels the government to disclose information "if public interest in disclosure outweighs the harm to protected interests". While these rendered the Centre's arguments and claims futile, another significant inference was curiosity revolving on why the Centre would walk the extra mile to exercise "privilege" in the matter when it seemingly has nothing to hide regarding the contentious Rafale deal. Having already received a clean chit from the apex court should reinforce the government's image and mere review petitions should not bother to severe extents. If it is about transparency – which SC will ensure through the review petition – then the government should support the scrutiny by the court instead of resisting it by offering preliminary objections and using distinct statutes to reinvigorate its arguments. Government's argumentative stance drawing support from OSA instead of taking steps to denounce and review the colonial law, and its interest in keeping the contentious and pivotal documents out of the public domain paint a sketchy picture. The Centre has been given the benefit of the doubt earlier but its non-revelation of sensitive documents that are essential to the deal has brought forth the situation of the review petition. Now, greater compliance on Centre's part will be the only way to restore the faltering public trust which has been amplified since the revelation of documents leaked from the Defence ministry.
