Rafale Scam: State threatens action against media houses under OSA

As if using it as a weapon against dissenting voices wasn’t enough, the state has now raised the issue of ‘national security’ to threaten fearless journalists and publications that refuse to toe the government’s line. During a hearing in the Supreme Court (SC) in the Rafale scam, Attorney General (AG) KK Venugopal alleged that stories exposing dirty dealings in the case published in two newspapers, were based on documents ‘stolen’ from the Defence Ministry, thereby making it a case fit to be tried under the Official Secrets Act.

An SC bench of Chief Justice Ranjan Gogoi, and Justices SK Kaul and KM Joseph were hearing a batch of review petitions filed by various parties including senior advocate Prashant Bhushan in the Rafale case. Referring to the use of the ‘stolen’ Defence Ministry documents, the AG submitted, “We are considering action against two newspapers which published government documents and a senior counsel.”

One of the publications mentioned was The Hindu newspaper that has been consistently publishing scathing criticism of the entire process followed in the Rafale deal. A specific reference was made to this article published on March 6, 2019, that explains how the absence of bank guarantees made the deal more expensive. Venugopal alleged that the article was published on the day of the court proceedings to influence the hearing and claimed this amounted to contempt of court. The other publication that allegedly published the said ‘stolen’ documents was identified by advocate Prashant Bhushan as ANI.

What followed was a heated exchange between the bench and the Attorney General.

Examining the issue of Official Secrets Justice KM Joseph observed, “The question of national security will not arise when the issue before Court is whether investigation should be ordered. Even stolen evidence can be looked into by the Court. It is well settled under Evidence Act. If an act of corruption is committed, government cannot take shelter under the Official Secrets Act.”

But the AG responded saying, “They have come with a document which is stolen. Your Lordships might have your view on it (admissibility of such a document) but I have a different view.”

That’s when CJI Gogoi weighed in saying, “An accused is having difficulty in proving his innocence. He steals a document and shows it to judge. The document clearly shows he is innocent. Should the judge not admit the document?”

To this the AG responded saying, “He has to disclose the source of the document. The submission is, once the document is a subject matter of criminality, in my opinion, the court should not look into it.”

But the CJI countered asking, “If your submission is that petitioners have not come bona fide, then that’s different. But can you say that the document is completely not touchable?”

That’s when AG KK Venugopal appeared to not only add a political angle to the proceedings, but also cautioned the judges advising them how to conduct themselves, saying “In this limited area concerning the defence of frontiers, would it not be appropriate for Your Lordships to exercise restraint? This is a matter by which opposition is trying to destabilise the government.”

The entire episode is unsettling given how the State appears to be determined to muzzle independent media in the country, using extreme provisions of the law, all under the guise of defending ‘national security’ and ‘official secrets’. The case has now been adjourned to March 14, 2019.



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