No law can stop media publishing secret documents: SC

NEW DELHI: Reiterating the sanctity of freedom of press, the Supreme Court on Wednesday ruled that neither any Parliament-enacted law nor the dreaded British-era Official Secrets Act could stop the media from publishing or the court from considering “secret” documents.

“There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as ‘secret’ or from placing such documents before a court of law which may have been called upon to adjudicate a legal issue concerning the parties,” CJI Ranjan Gogoi and Justice Sanjay K Kaul said.

Justice K M Joseph, in a separate judgment, agreed with this view and the court unanimously decided to hear petitions seeking review of the December 14 verdict giving a clean chit to the NDA government in the procurement of Rafale fighter jets from France.

The court also trashed the Centre’s attempt to claim privilege over three secret documents related to the Rafale deal and attorney general K K Venugopal’s argument that their unauthorised photocopying was prohibited under the OSA and RTI Act.

Writing the main judgment, the CJI adopted the US Supreme Court’s logic in its 1971 judgment, which had refused to recognise the executive government’s right to restrain publication of ‘Pentagon Papers’. This judgment was cited and relied upon by advocate Prashant Bhushan.

The US SC, by a 6-3 majority, had declined to pass prohibitory orders on publication of ‘Pentagon Papers’ (by New York Times) on the ground that the legislature had vested no such power on the executive and hence the court could not introduce it.

Rejecting Venugopal’s arguments dissuading the court from considering the worth and evidentiary value of the documents because of the prohibition under the Official Secrets Act, 1923, the CJI said, “We do not see how the principle of law (in the US SC judgment) will not apply to the facts of present (Rafale) case.”

The SC said the objection raised to the petitioners placing the three secret documents, which were already published in newspapers, before the court lacked common sense as the Centre did not dispute the availability of these documents in the public domain.

“No questions have been raised and, in our considered opinion, very rightly, with regard to publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice,” the CJI said.

The SC said publication of Rafale documents reminded the court of its consistent views in upholding the freedom of press in a long line of decisions commencing from the Romesh Thapar judgment in 1950 to the Indian Express judgment in December 1984.