The hullabaloo caused by the leaked ‘Pentagon Papers’ revealing uncomfortable truths about US’s role in the Vietnam war five decades ago, resonates with the attempts to gag the media from publishing documents related to the Rafale case in India. M.Sridhar Acharyulu shines a spotlight on the RTI which has made all the difference.

Supreme Court Photos (47)
Supreme Court of India (pix from official website)

Press freedom, with some help from the Right to Information (RTI), has won –at least for now– the battle over official secrets in India. Article 19(1)(a )has prevailed over the ‘privilege’ claim of the Union Government. The game around the secrets of the Rafale deal and the demand for a probe may not yet be over but the Supreme Court has added an RTI foundation to freedom of speech in Yeshwant Sinha v Union of India on April 10, 2019.

It is said that the conflict between the imperatives of press freedom and national security was well illustrated by the Pentagon Papers case in the USA. It must be said now that the recent Supreme Court judgement illustrates better the potential conflict between freedom of press and the right to know on the one hand and national security on the other. After 38 years, the Pentagon Papers judgement was upheld, as it were, in the Rafale case in India.

Presidential lies and official secrets

To recap, the US Defence Department’s top-secret ‘Pentagon Papers’ (officially the Report of the Office of the Secretary of Defense Vietnam Task Force ), showed that President Lyndon Johnson had lied to Congress and the public about the extent of the Vietnam war. Analyst Daniel Ellsberg photocopied the papers and leaked them to The New York Times. On June 13, 1971, scathing articles with vital points from the leaked report were published in The New York Times and The Washington Post. The Nixon Government wanted a permanent restraint on such publications, claiming that it should be the sole judge of national security needs and that the media could neither write nor opine about this. The New York Times questioned this policy on the strength of the First Amendment freedoms and pointed out that the real motive was political censorship rather than protection of national security.

The same question arose in India: When the allegation that needs to be probed relates to a link between arms-dealers and political leaders, how can the issue of national security be raised? The US government then and India now have contended that dire consequences could result from publication of classified documents. The publication of the Pentagon Papers helped fuel the debate over the wisdom of army involvement in Vietnam and no injury resulted to national security. Because of this, any Government in the US has to think twice before getting involved in wars. Jim Goodale, general counsel to The New York Times during the hearings, said: “It serves as a shield against an overzealous government”.

Chief Justice Ranjan Gogoi said, ‘the US Supreme Court declined to pass prohibitory orders on 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 amounts to unauthorized judicial law making ,thereby violating the sacred doctrine of ‘separation of powers’. He asked ‘how and why will the above principle of law not apply to the facts of the present case? 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 Law which may have been called upon to adjudicate a legal issue concerning the parties’.

Iron wall of security

The Hindu and other media published the Rafale Papers, which were later attached to the review petition filed by Prashant Bhushan on behalf of Yashwant Sinha and Arun Shourie. The Attorney General threatened to prosecute them. The Centre filed an affidavit on March 13, 2019 stating that those who leaked the documents were guilty of penal offences including theft. It was claimed that the annexed notes were marked ‘secret’ and exempted from disclosure even under the Right to Information Act. The affidavit also raised an objection under The Evidence Act regarding the use, without permission, of evidence derived from unpublished official records relating to the affairs of the state.

Suhail Naqshbandi 12
When important Rafale documents are lost                    (Cartoon by Suhail Naqashbandi)

When Raj Narain, who lost an electoral battle with Prime Minister Indira Gandhi, wanted the Centre to share the blue book regarding the security of the Prime Minister’s visit during electioneering, the Government of India, like the US government in the Pentagon Papers, refused to do so on grounds of ‘security’. In these two cases disclosure was upheld as grounds for secrecy failed. Both the governments were trying to hide either failures or abuse of power. In the Rafale case, the government also failed to explain how a dissent note from three negotiators would pose a clear and present danger to ‘security’.

To say that this document could not have been disclosed even under The RTI Act is also not legally tenable, because The RTI Act provides for disclosure of defence details and information from exempted organisations as well in the context of corruption and human rights violation. The political executive cannot use The Official Secrets Act and a ‘national security’ defence without justifying them. In the absence of justification, such denials amount to hiding the truth and preventing a probe.

The government was, in actuality, trying to hide certain facts behind the iron walls of secrecy, security and privilege. It also wanted to avoid judicial scrutiny. Hence, it argued that stolen documents could not be inquired into by the courts. The questions that arise are : a) Whether classified documents cannot be published by media, in view of the right to freedom of expression , and b) Do people have the right to know? But the most crucial question is: Does the judiciary have the right to know and consider incriminating documents obtained by so called ‘improper’ means?

The court strongly relied on the latest access law and pointed out its effect in overriding the colonial British law of secrecy. The court held that it had the right to examine all the papers of the negotiations; the undue increase in the price; the irrational preference of Anil Ambani to HAL; the go-by given to the ‘Make in India’ policy; and the dissent note of three members of a seven-member negotiating team against a parallel bargain by the PMO in the Rafale deal (found in the leaked documents ) in order to decide the petition for review of the clean chit given by the Supreme Court in December 2018.

Accountability through transparency

The major contextual difference between the Pentagon days and the present Rafale ruckus is the statutorily guaranteed Right to Information, which has stormed the democratic world in recent decades and strengthened free speech. The Supreme Court reiterated its judgment in CIC v Manipur [(2011) 15 SCC,1] saying Parliament enacted the RTI Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.”

The significance of RTI came up when Justice Joseph made the Attorney General read out Sections of The Right to Information Act, 2005. The judge said that the information law has revolutionised governance and overpowered notions of secrecy protected under the Official Secrets Act, 1923. The court then asked the AG to first read Section 22, which emphatically empowers The RTI Act to override The Official Secrets Act and then Section 24 which mandates that even exempted organizations like security and intelligence wings have to disclose information on corruption and human rights violations. The Apex Court also rightly pointed out that section 8(2) compels the government to disclose ‘if public interest in disclosure outweighs the harm to protected interests’. This section begins with ‘notwithstanding anything in Official Secrets Act.’ These provisions specifically refer to official secrets of the defence department. How can the government ignore such an important RTI Act and demand secrecy? The AG defended the government’s stand ‘for security of state that supersedes everything else’ . The official affidavit claims that the leak was a conspiracy to jeopardise national security and friendly relations with France.

Countering the AG’s claim of privilege and objection to admissibility of ‘stolen’ documents, Justice Joseph asked ‘how is it that you decide privilege protection? Is there a high level inter-departmental call taken on this? Can’t the court even examine the documents to decide your claim of privilege?’ The admissibility of documents is decided on the test of relevancy and not on their source. These points became substantial postulations of the SC judgment, thus accepting Prashant Bhushan’s point that public interest trumps privilege.

Had the Supreme Court full bench not rejected all these unconstitutional claims of the Government, the judiciary would have lost the power for ever, to examine the defence deals of political leaders generally and the Rafale deal in particular. The court unanimously retained the power of judicial review in such matters and consolidated press freedom to acquire such incriminating documents by any means, to secure the public interest. The AG’s contention, if accepted , would have operated as a permanent injunction against the media to publish any leaked paper or document or obtained by sting operations simply because the government has classified it in the name of national security.

When journalists and lawyers are threatened with prosecution for publishing or using incriminating defence documents, a free media’s rights are under attack. Such ill-advised tactics also seek to obstruct the right of people to know and to prevent judicial scrutiny. The judgements in both the Pentagon Papers and the Rafale Papers have strengthened the fourth pillar of democracy in two of the world’s major democracies.

The author is professor of media law at Bennett University and former Central Information Commissioner.


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