Even if it is not a huge part of the ongoing election campaign, the controversy around Prime Minister Narendra Modi’s deal to buy 36 Rafale fighter jets from France continues to simmer. This week, the Supreme Court dealt a blow to the Union government, after it dismissed arguments that several secret documents about the Rafale deal could not be examined by the court because they had been “stolen”.
The court said that, since the government did not question the authenticity of the documents, it did not matter how they had been procured, and that the court would only look at whether they are relevant to the matter. It went on to mount a defence of the freedom of The Hindu, the newspaper which published a series of articles revealing serious doubts raised by members of the government’s negotiating team as the Rafale deal was being finalised.
Here is a brief background and an explainer why the Supreme Court judgment matters to journalists:
What is the Rafale controversy?
In 2015, Modi decided to drop ongoing negotiations with French manufacturer Dassault to buy 136 Rafale fighter jets, despite a drawn-out technical evaluation process that had been on for many years at that point. Instead, Modi announced a government-to-government deal, under which India would buy just 36 Rafale jets directly from the French state, in terms that the government said was better than the deal being negotiated previously. Subsequent to this, however, every aspect of the new deal has been questioned, from whether India is getting a lower price to why the deal involves Anil Ambani’s Reliance.
The matter was taken to the Supreme Court, with several petitioners demanding an investigation into the deal, but the court in 2018 chose not to intervene. However, that verdict itself had a number of flaws, and several news organisations, most prominently The Hindu, have published stories since that have raised additional questions.
What did the Hindu publish?
In a series of six reports in February, The Hindu’s N Ram built on earlier reporting by other journalists and some previously unseen documents that came together to reveal a number of troubling details about the way India’s Rafale negotiations happened under the Narendra Modi government.
One of the key revelations was a complaint from the Defence Ministry’s negotiation team that the Prime Minister’s Office had been carrying on a separate negotiation process of its own with the French, thereby undermining and weakening the position of the official team. This weakened position meant that India would not actually be getting a better deal than what had been on the table previously. It also meant that the French were permitted to drop clauses that are otherwise standard for India such as requiring bank guarantees and anti-corruption measures.
Crucially, the reports were all based on actual file notings and reports made by defence ministry officials, meaning these were not allegations by the Opposition or experts from the outside. The petitioners who had originally approached the court seeking an investigation, took these documents back to the Supreme Court, saying there was now additional evidence suggesting that at the very least an inquiry must take place.
What were the government’s arguments?
The government objected to this argument, insisting that the court should not even consider these documents.
The government argued that these reports could not be taken up by the bench because they were based on “secret” documents that had been stolen, although it later simply said they had been illegally “photocopied”. The government said that those who have put such documents out are endangering national security and are guilty of leakage of sensitive documents. In particular, it argued that the specific documents in this case were privileged under sections of the Indian Evidence Act that allow public officers to refuse giving evidence or information if they believe public interest will suffer by revealing such details.
Attorney General KK Venugopal then went further. He argued that an investigation into the Rafale deal would cause harm to the country, and referred to recent skirmishes between India and Pakistan to make his claim, without exactly explaining how they were connected. He also said that anything the court does on the matter would have a political impact and be used by the Opposition to destabilise the government.
What did the court say?
The court dismissed the arguments altogether. Chief Justice of India Ranjan Gogoi and Justice Sanjay Kishan Kaul, in their order, concluded that any reference to the government’s privilege to not reveal details “has to be essentially adjudged on the touchstone of public interest”. Moreover, the order pointed out that the documents here had already been made public by The Hindu, so there was no question of not examining them because they counted as “privileged” documents.
The court also pointed out that the “test of admissibility of evidence lies in its relevancy”. Meaning, even if there are problems with how evidence has been obtained, if the material is genuine, then the question of whether the court can consider it as part of the judicial process is based on whether it is relevant, not how it was obtained.
Finally, with regards to the government’s argument that the court’s decision would have political repercussions, the court pointed to the famous Kesavanda Bharati case, which pointed out the following:
“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...[The court’s] primary duty is to uphold the Constitution and the laws without fear or favour.”
Why does it matter for journalists?
Though the government did not exactly question the decision made by The Hindu to publish the documents, only arguing that the documents themselves had been stolen, the judges decided it was useful to make a strong statement defending this decision as well.
In the lead verdict, the court said there is no provision in the Official Secrets Act or any other law which gives the government powers to prevent publication of a document that had been marked secret, or to stop such documents from being presented to a court.
“No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper,” the verdict by Chief Justice Gogoi and Justice Kaul said. “In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions.”
In a concurrent judgment, Justice KM Joseph went even further.
He reminded us all that a major change in the way India’s laws look at secrets took place after the passage of the Right to Information Act. Calling it a “paradigm shift” and a “revolution”, the concurrent verdict points out that the Right to Information Act explicitly says it overrides other laws governing secrecy, if it involves information regarding human rights abuses or corruption.
“It is clear that Parliament has indeed intended to strengthen democracy and has sought to introduce the highest levels of transparency and openness,” the verdict says. “Section 8(2) of the [RTI] Act manifests a legal revolution that has been introduced in that, none of the exemptions [under the RTI Act or the Official Secrets Act] can stand in the way of the access to information if the public interest in disclosure overshadows the harm to protected interests.”
Senior advocate Indira Jaising went so far as to compare this judgment to the Pentagon Papers’ case in the United States, in which the US Supreme Court upheld the right of newspapers and the public to access otherwise secret documents if it is in the public interest.
“This judgment of the Court will go down in history as one which occupies the same position as the ‘Pentagon Papers’ case,” Jaising wrote. “It gives to ordinary citizens an effective right to take action against people in power and those who occupy constitutional office, and an effective right to prosecute them for corruption.”