Supreme Court Upholds Freedom of Press, Rejects Government’s Attempt to Bar Publication of Secret Documents in Rafale Deal Case

Top Court Rules No Executive Power Exists to Restrain Publication of Official Secrets, Emphasizes Balancing Public Interest and Transparency under RTI Act

In a landmark judgment delivered on April 10, 2019, the Supreme Court of India decisively upheld the constitutional freedom of the press and ruled against the Union of India’s preliminary objections seeking to dismiss a review petition in the Rafale deal controversy. The review petitioners, led by Yashwant Sinha, had relied upon three documents marked as secret under the Official Secrets Act, 1923, which the government claimed were obtained and published unlawfully. The Court clarified that neither the Official Secrets Act nor any other law empowers the executive to restrain the publication of documents marked secret once such documents have entered the public domain.

The documents in question, including notes from the Ministry of Defence marked “Secret,” were published in the national daily ‘The Hindu’ and digital media outlet ‘The Wire’ in early 2019. The government argued that their unauthorized removal and publication violated Sections 3 and 5 of the Official Secrets Act and sought their exclusion from judicial proceedings. However, the Supreme Court rejected these contentions, emphasizing that the right to freedom of speech and expression under Article 19(1)(a) of the Constitution extends to the freedom of the press, a right that can only be restricted within the narrowly defined grounds of Article 19(2).

The Court reiterated the principle that no law enacted by Parliament has vested the executive with the power to restrain the publication of secret documents. Citing landmark Indian precedents such as Romesh Thappar v. State of Madras and Indian Express Newspapers v. Union of India, the judgment underscored the vital role of a free press as the “Fourth Estate” in a vibrant democracy, which must be fearless and impartial to ensure the public’s right to know.

Further, the Court addressed the government’s claim of privilege under Section 123 of the Indian Evidence Act relating to unpublished official records. It noted that since the documents had already been published in the public domain, the claim of privilege was untenable. The Court also referred to the Right to Information Act, 2005, particularly Sections 8(1)(a) and 8(2), which provide that information exempted due to potential harm to sovereignty or security may still be disclosed if the public interest outweighs such harm. This legislative framework represents a paradigm shift enhancing transparency and accountability.

The judgment also highlighted that evidence obtained unlawfully is not automatically inadmissible, reaffirming the principle from Pooran Mal v. Director of Inspection. The Court observed that in matters involving allegations of grave wrongdoing at the highest echelons of power and corruption under the Prevention of Corruption Act, the balancing of public interest tilts in favor of disclosure and judicial scrutiny.

Justice K.M. Joseph, concurring with the Chief Justice, elaborated on the indispensable role of an unbiased, responsible press in strengthening democracy and facilitating informed public discourse. He cautioned against the dangers of media bias influenced by commercial or political interests and emphasized that freedom of the press ultimately benefits the people, not just the media.

The Court dismissed the government’s plea to treat the case as a political question beyond judicial review, reaffirming the judiciary’s constitutional duty to uphold justice without fear or favor. Consequently, the review petitions challenging the Rafale deal were ordered to be adjudicated on their merits, with the three contested documents retained as part of the record.

This judgment marks a significant affirmation of press freedom, transparency, and judicial oversight in India’s democratic framework, especially in matters implicating public interest and allegations of corruption at the highest government levels.

Statutory provisions

Article 19(1)(a) and 19(2) of the Constitution of India, Article 137 of the Constitution of India, Sections 3 and 5 of the Official Secrets Act, 1923, Sections 8(1)(a), 8(2), 22, 24 of the Right to Information Act, 2005, Sections 123, 124, 162 of the Indian Evidence Act, 1872

Yashwant Sinha v. Central Bureau of Investigation through Its Director (SC) : Law Finder Doc Id # 1421687