Writing a concurrent judgement in the review petition of the Rafale case, the Supreme Court (SC) judge Justice K.M. Joseph pointed towards a disturbing trend of bias in some sections of the media that was threatening the freedom of speech and expression.
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He wrote, “If freedom is enjoyed by the Press without a deep sense of responsibility, it can weaken democracy. In some sections, there appears to be a disturbing trend of bias. Controlling business interests and political allegiances appear to erode the duty of dispassionate and impartial purveying of information.” He further said that the rights of the press in India is not higher than the right of the citizens under Article 19(1)(a) and a biased information violates this right of the citizens. He then emphasized on the significance of the Right to Information Act that has helped in refuting the privilege claims of the government over certain controversial documents relating to the € 7.87 Billion Rafale Aircraft deal.
This judgement comes after the petitioners – Arun Shourie, Prashant Bhushan and Yashwant Sinha – had made a fresh application in the SC for a CBI inquiry after their initial request in October, 2018 was rejected. The new application was made as the petitioners found some factual and legal errors in the December, 2018 order. The case took a new turn on March 6, 2019 when The Hindu released documents that revealed the discrepancies and corruptive practices by the Central Government in the Rafale deal. It exposed the major and unprecedented concessions offered to France.
This was a big blow to the government as it has been under the scanner since the time the deal was made public. Thus, in response, the Attorney General (AG) K.K. Venugopal, in the hearing scheduled on the same day, made allegations that these documents were stolen from the Ministry of Defence and were released on the same day to influence the hearing. He even threatened The Hindu that criminal action will be taken against it under the Official Secrets Act (OSA), 1926 on the grounds that leaking of these documents poses a threat on the national security. However, Justice K.M. Joseph said that these documents were well within the Evidence Act, 1872, thus the question of national security cannot arise. He further said that the government cannot take shelter under the OSA if an act of corruption is committed. The AG then compelled The Hindu to reveal the source of the information, but nowhere in the entire course did he question the authenticity of the documents.
This entire episode is unsettling given how the government is determined to undermine the independent media by posing such unprecedented threat under the guise of ‘national security’ and ‘official secrets.’ Thus, the SC’s judgement to consider the documents is a firm and necessary rebuff to the Central Government’s attempts to de-legitimise any kind of investigative journalism on this controversial subject.
Besides the Rafale issue, this judgement is significant on various lines. Time and again, the current ruling dispensation has tried to curb the freedom to speak and tag dissenters as anti-national. It has went to an extent to charge sedition cases or use section 66A of the Information Technology Act against such people and arrest them for spreading “fake news”. Afterwards the SC had struck down section 66A and termed it as unconstitutional in the Shreya Singhal V. Union of India judgement in March, 2015. With this judgement too, Justice Joseph has re-emphasized the significance of a free and an unbiased press, the fourth and an essential pillar in the functioning of a constitutional democracy.