By Sunil Garodia
The Supreme Court has, by dismissing objections by the government against petitions for review of its 2018 order on the Rafale deal, batted strongly for free speech and transparency in governance. Its order has two distinct threads and both of them are of immense importance to democracy.
In the first thread, the court has clearly said that the government cannot invoke acts like the Official Secrets Act or Evidence Act to claim privilege over documents produced as evidence in any court of law. It forcefully said that the authenticity of the submitted documents was all that mattered; it was not for the court to see how they were sourced.
In the second thread, the court said that the media have unfettered right to publish such documents (stories based on the Rafale documents were first published by the newspaper The Hindu) and again the government cannot stop such publication as there was no law that empowered it to do so, even by pleading that the documents are “secret” or classified. The court observed that “the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. The court also cited the US Supreme Court judgment in the Pentagon Papers case in this regard.
If a government is allowed to claim privilege over official documents, we can kiss transparency goodbye. In the instant case, documents sourced and published by The Hindu showed that there were dissenting notes from the India Negotiating Team and notes from the Defence Ministry about interference from the PMO during the negotiations for buying the Rafale jets. These are matters that the public must know. These are also matters which may make the Supreme Court change its mind and go in for examining the Rafale deal in detail.
In any case, if the government has nothing to hide it should not be worried about the documents. In such a huge deal there are several twists and turns and offers and counter-offers. The team dealing with Rafale must have been advised by the Defence Ministry, the Finance Ministry or even the PMO. There are many implications of such a deal and it is not improper for several government wings to be involved. What the court and the nation must know, however, is whether the interference by the PMO was to offer general advice or to influence the deal, either price-wise or in favour of any party. If it was the latter, then it would amount to corruption.
The legal battle may have just begun. First, based on this new evidence, the Supreme Court will now decide whether it needs to revisit its original order dismissing an inquiry in the deal. If it decides that it will review, then the whole deal will perhaps be examined threadbare and the nation will come to know whether the chowkidar is actually chor or whether it was just an election slogan coined by the spin doctors of a frustrated politician.