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SC rebuff on Rafale deal

Kashmir Times. Dated: 4/12/2019 12:40:47 AM

The top court decision exposes attempts of BJP-government to de-legitimise citizens' right to challenge murky deals

The Supreme Court decision to consider the veracity of the documents filed in petitions and published in the media challenging the Rafale fighter aircraft deal is definite rebuff to the present BJP-government's attempts to prevent judicial scrutiny of these papers. The top court observations on the central government's reply and objections to consideration of such documents also frustrate the centre's attempts to de-legitimise all investigative journalism that exposes the murky affairs of the rulers. The unanimous verdict of the SC announced on eve of first phase of General Elections in two concurring orders means that review petitions filed against earlier orders declining investigation into Rafale deal will now be taken on merits and the petitioners will be free to rely on these documents. Moreover, the petitioners and the media organizations which expose the noting on the documents that were alleged to have been stolen from the government files will now be allowed to quote and rely on these papers in the court. The SC rejection of the objections to the quoting of these documents in the petitions and media sets the record straight that any hanky-panky in Rafale deal will now be discussed and debated in the top court as well as in public to ascertain the motives behind hiding these facts from the common masses. The BJP-government's threat to initiate action against the petitioners and media organizations under the Official Secrets Act has been dismissed by the SC, that went on to say such objections and threats cannot be entertained if the deal involves thousands of crores of Rupees of the public exchequer to which common masses contribute from their hard-earned money. It is interesting to mention that a dissenting note by members of the India Negotiating Team, and notes that disclose unease in the Defence Ministry over parallel negotiations at the PMO's instance undermining the official parleys are among them. It would have been a travesty had the government succeeded in blocking judicial scrutiny of these documents, as they disclose significant details about the decision-making process. The BJP-government's desperation to prevent the court from relying on these papers included a claim of privilege under the Evidence Act. Later, it toned down the allegation by saying the original documents had not been stolen, and what were published were unauthorised photocopies. None of these claims impressed the court, which relied on the principle that how a piece of evidence is obtained is immaterial, as long as it is relevant to adjudicating an issue and served its purpose in the interest of the public.
The SC decision on admissibility of the 'leaked' documents has significance beyond the Rafale deal because of the reason that it strengthens the rights of the citizens and the free press to the extent which underscores its importance in terms of the public interest. Moreover, it also sets the principle that it is not the content of the document alone that will decide whether its disclosure is needed or not in the Rafale deal case. Referring to the publication of the Rafale documents in print and electronic media, the Chief Justice Ranjan Gogoi observed that "the right of such publication, broadcast and telecast would seem to be in consonance with the constitutional guarantee of freedom of speech". Citing the US Supreme Court decision on the Pentagon Papers, he noted that neither the OSA nor any other law vests any power in the executive to stop publication of documents marked 'secret' or the placing of such documents before a court of law which may be called upon to adjudicate a legal issue of an important nature. It is still premature to conclude, based on this development, that the court's earlier decision to not order a criminal investigation into the purchase of 36 Rafale jets will be revisited or not. But, it will certainly help provide clarity on several aspects of the murky deal. Had the BJP-government agreed to a parliamentary probe that has happened in some previous cases of such deals, it would not be suffering this sort of setback it has now faced in the Supreme Court.