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Rafale deal document controversy

Rafale deal document controversy


  • GS 2 || Polity || Constitutional Framework || Fundamental Rights

Why in news?

  • The Supreme Court dismissed preliminary objections raised by the Centre that documents on which it claimed “privilege” cannot be relied upon to re-examine the verdict in the Rafale fighter jet deal.

How it came up

  • “Privileged” documents: The Centre had submitted that the “privileged” documents were procured by the petitioners in an illegal way and used to support their review petitions against the December 14, 2018 judgement of the apex court dismissing all pleas challenging the procurement of 36 Rafale fighter jets from France.
    • The documents had been published by The Hindu and The Wire news website.
    • The petitioners had relied on these documents while seeking a review of the court’s judgment on December 14, 2018.
  • Attorney General: For the government, Attorney General K K Venugopal had objected on the ground that the documents had been removed from the Ministry of Defence without authorisation. The AG raised three specific questions –
    • relying on the documents was violative of the Official Secrets Act;
    • the documents could not be accessed under the Right to Information Act; and
    • the government was entitled to privilege under the Evidence Act.
  • However, before dealing with the questions regarding the maintainability of the review petition, the apex court observed that it would first deal the critical issue of freedom of the press, since the petitioners had relied upon articles published on various media platforms.

Court’s rationale

  • The court emphasised at the very beginning that although the issue before the court is not about freedom of the press, the “present could very well be an appropriate occasion” to recall the views expressed by the Supreme Court on the issue.
  • Freedom of press: It observed that the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech, and wrote:
    • “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. In fact, the publication of the said documents in The Hindu newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions.”
  • Earlier judgments:
    • In Romesh Thappar vs State of Madras (1950), relating to Thappar’s magazine Cross Roads being banned by the Madras government for publishing views critical of the Congress, the court had held that “freedom of press lay at the foundation of all democratic organisations”.
    • In Brij Bhushan vs State of Delhi (1950), which related to a ban on Organiser magazine, the court had observed that “the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a)”.
  • Official Secrets Act: Further, the court observed that 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 justice.
  • Social purposes: Justice Joseph quoting from a verdict, highlighted that ‘freedom of expression’, has four broad social purposes to serve:

(i) it helps an individual to attain self fulfilment,

(ii) it assists in the discovery of truth,

(iii) it strengthens the capacity of an individual in participating in decision making, and

(iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.


  • Investigative journalism: The Supreme Court’s decision is a firm and necessary rebuff to the Central government’s attempts to prevent judicial examination of these papers and to de-legitimise all investigative journalism on the subject.
  • Clarity: It is 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. However, it will certainly help provide clarity on several aspects of the murky deal.
  • Right of free press: Moreover the decision on the admissibility of the documents has significance beyond the Rafale issue: it revivifies the rights of a free press and underscores the principle that it is public interest, and not the content of a document alone, that will decide whether disclosure is needed or not in a given case.

Mains question

  • A free press stands as one of the great interpreters between the Government and the people. Citing instances, examine the views expressed by the apex court on the issue of freedom of press over the years.