Rafale aircraft deal: How Supreme Court asserted press freedom

Kaunain Sheriff M
The petitioners - former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan - had relied on these documents while seeking a review of the court's judgment on December 14, 2018. (Illustration: CR Sasikumar)

In rulings relating to the Rafale aircraft deal Wednesday, the Supreme Court dwelt on freedom of the press while allowing three documents relied upon by the petitioners.

How it came up

The documents had been published by The Hindu and The Wire news website. The petitioners - former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan - had relied on these documents while seeking a review of the court's judgment on December 14, 2018. For the government, Attorney General K K Venugopal had objected on the ground that the documents had been removed from the Ministry of Defence without authorisation. The AG raised three specific questions – that relying on the documents was violative of the Official Secrets Act; that the documents could not be accessed under the Right to Information Act; and that the government was entitled to privilege under the Evidence Act.

However, before dealing with the questions regarding the maintainability of the review petition, the three-judge Bench - Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and K M Joseph - observed that they would first deal the critical issue of freedom of the press, since the petitioners had relied upon articles published on various media platforms.

CJI Gogoi & Justice Kaul

CJI Gogoi, authoring his order along with Justice Kaul, emphasised at the very beginning that although the issue before the court is not about freedom of the press, the "present could very well be an appropriate occasion" to recall the views expressed by the Supreme Court on the issue.

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Justice Gogoi observed that the "right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech", and wrote: "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. 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."

CJI Gogoi cited various judgments on freedom of the press. In Romesh Thappar vs State of Madras (1950), relating to Thappar's magazine Cross Roads being banned by the Madras government for publishing views critical of the Congress, the court had held that "freedom of press lay at the foundation of all democratic organisations". In Brij Bhushan vs State of Delhi (1950), which related to a ban on Organiser magazine, the court had observed that "the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a)". In Indian Express Newspapers (Bombay) Pvt Ltd vs Union of India (1985), the court had held that "freedom of press is at the heart of social and political intercourse" and observed: "Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities."

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CJI Gogoi also cited New York Times Company vs United States (1971), in which the US Supreme Court had refused to prohibit publication of the 'Pentagon Papers' on the ground that "the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers". "We do not see how and why the above principle of law will not apply to the facts of the present case," CJI Gogoi said.

On one of the questions raised by the government, Justice Gogoi observed: "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 justice…"

Justice Joseph

In his separate but concurring judgment, Justice Joseph too began with the issue of freedom of the press: "I do agree with the observations made by the learned Chief Justice in regard to the importance which has been attached to the freedom of press. Press in India has greatly contributed to the strengthening of democracy in the country. It will have a pivotal role to play for the continued existence of a vibrant democracy in the country…"

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At the same time, Justice Joseph observed that the right of the press in India is "no higher than the right of the citizens under Article 19(1)(a)"; that the press "cannot be biased"; and that "transmitting biased information, betrays absence of true freedom". "If freedom is enjoyed by the Press without a deep sense of responsibility, it can weaken democracy," Justice Joseph observed. Justice Joseph quoted from Time vs Hill (1967) in the US Supreme Court: "The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people."

Justice Joseph too cited Indian Express (1985). To underline that the fundamental principle in freedom of the press is the people's right to know, he quoted from the verdict: "Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an inpidual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an inpidual in participating in decision making, and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change."