SC Decision On Rafale Secrecy Is Right, But Isn’t It Time To Apply Transparency Rule To Itself?

The Supreme Court’s preliminary verdict, rejecting the Union government’s contention that stolen documents cannot be produced as evidence of alleged corruption in the Rafale deal, is a blow for free speech. Contrary to the general impression, it does not in any way amount to a revision of its earlier Rafale verdict, which exonerated the government of any wrongdoing, but is merely a reiteration of a broader principle, that public interest trumps secrecy in such matters.

For the government, this resort to the Official Secrets Act was probably a stalling tactic, and it has achieved that purpose. But having already shared substantial details of the Rafale deal with the court in an earlier instance – something the court should not have gone into when the Comptroller and Auditor General was already on the job – it is hardly likely that sharing more details will somehow incriminate it. On the other hand, the Supreme Court mini verdict does not prevent the government from penalising its own officers who may have leaked the documents to the media.

The verdict is, however, important for the principle it upholds – that the media is not accountable for how it procures certain kinds of evidence, as long as it can prove that it had done so in public interest. In this case, where corruption has been alleged in the Rafale deal offsets, public interest is clearly on the side of the media.

However, one hopes that the Supreme Court will uphold this principle of openness and transparency in other areas, where too public interest is involved.

First, contempt laws, whether used by the legislature or the judiciary, must also be kept in abeyance if public interest is at stake. But the judiciary, especially at the lower levels, has shown complete contempt for the rights of citizens and the media when it comes to using the contempt law to suit itself. Isn’t it time the Supreme Court laid down broad rules on restraining the use of contempt laws?

Second, if public interest is paramount, isn’t it time the judiciary regularly declared its assets and incomes to the public without fail? If one were to check the Supreme Court website, only seven of the 27 sitting judges have disclosed their assets as on 11 April.

Third, if the public has a right to know how a decision was arrived at on Rafale, isn’t it equally in the public interest to know how the Supreme Court collegium came to suggest the names of judges for elevation or transfers, and the processes adopted to shortlist candidates? The court has pronounced itself in favour of the Right to Information (RTI), but has kept itself out of the ambit of RTI. This hypocrisy must end.

Fourth, should not normal court proceedings be televised the way debates in the Lok Sabha and the Rajya Sabha are? This is the only way improper judicial behaviour and partisanship can be exposed, given the huge powers given to judges over ordinary citizens.

Fifth, should the Election Commission be arbitrarily deciding what issues can be discussed and what not during an election? Is this not a huge curb on free speech and the public’s right to debate issues that concern it?

Sixth, if media is exempt from secrecy laws, isn’t it equally important for media to be transparent itself? Should it not be periodically asked to disclose its key investors, advertisers, and other deals it is entering into with government agencies or commercial sponsors? The rights of media to report in public interest cannot trump its responsibility to disclose its possible biases.

The Supreme Court decision in the Rafale case is important for the media, but the process clearly needs to be taken to its logical extreme if we are to believe that free speech and public interest are truly governing principles in our polity.