As it presented its case against investigations on the Rafale deal in Supreme Court on Wednesday, the government brandished a colonial-era law to prevent vital information from becoming public. Attorney General KK Venugopal told the Supreme Court that it could not rely on “illegally obtained documents” to allow petitions asking for an investigation. Newspapers that had used such documents, allegedly stolen from the defence ministry, for its reports could face charges under the Official Secrets Act, he said. When the court questioned such logic, the attorney general counselled judicial restraint, invoking national security.
It is an argument that is troubling on two counts. First, because the reports in question, published by the Hindu, among others, could raise corruption charges that hew close to the highest levels of government. The attorney general’s argument, then, sounds less like a disinterested plea for national security and more like an attempt to shield those in power. Second, it seeks to intimidate the press, putting a break on investigative reporting that holds government accountable.
The Official Secrets Act, passed in 1923, reflects an imperial, secret-keeping state, more concerned with controlling the public than with being accountable to it. It classifies certain information if it is deemed to compromise national security or national interest, or if it threatens to “embarrass the government”. There is no transparency about what criteria may have been used to classify a piece of information, or whether they had been used justifiably. The law, criticised for years, goes against legislation such as the Right to Information Act, 2005, which seeks to democratise the ownership of information. In 2015, the government even set up a panel to look into the law in the light of the Right to Information Act. If there is a clash between the two laws, public interest is to prevail.
But public interest has rarely been at work when governments have cracked down on journalists in the past. In 1998, it was wielded against a journalist who reported the contents of a cabinet note on disinvestment policy. In 2006, it was used against a Kashmiri journalist for allegedly passing on military information to militants; in the course of the trial, it emerged that such information was available in the public domain. Most major scams in the last few decades, from the Bofors deal to 2G spectrum allocation, have come to light when journalists doggedly went after information that the government did not want revealed.
In this case, the attorney general did not repudiate the information itself but the fact that the documents had been made public. With its plea against the Rafale investigation, the Narendra Modi government not only betrays a blatant disregard for the freedom of the press, but it also gives the unflattering impression that it has something to hide.