The Supreme Court on Wednesday held that the publication of three documents by 'The Hindu' on the Rafale jet deal, on which the Centre had raised preliminary objections claiming "privilege" over them, were in consonance with the constitutional guarantee of freedom of speech.
The apex court further said that the publication of the documents in the newspaper reminded it of its various judgments upholding the freedom of the press which have also been echoed by the US Supreme Court from time to time.
In the famous case of New York Times Company vs United States relating to the publication of the "Pentagon Papers", which contained information about the political and military involvement of the federal government in the Vietnam War, the US Supreme Court had refused to recognise a right in the executive government to seek a restraint order or publication of the papers.
The judgment penned by Chief Justice Ranjan Gogoi, on behalf of himself and Justice S K Kaul who were part of the three judge-bench delivering the verdict, said the apex court of the United States had refused to recognise the right of the government to restrain publication primarily on the ground that the First Amendment guaranteed freedom of the press and the US Code did not contemplate any restriction on publication of items or material specified in the Code.
"By a majority of 6:3, the US Supreme Court had declined to pass prohibitory orders on publication of the "Pentagon Papers" on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers," the CJI said.
The top court said the principle of law depicted in the "Pentagon Papers" case would apply to the facts of the Rafale case.
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"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," the CJI said.
The court said no law enacted by the 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 the court's notice.
"The fact that the three documents had been published in The Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents.
"No question has been raised and, in our considered opinion, very rightly, with regard to the 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," Justice Gogoi said.
Justice K M Joseph, who wrote a 38-page separate but concurring judgment, also highlighted the role of media with respect to Freedom of Speech.
The judge wrote that the press in India has greatly contributed to the strengthening of democracy in the country and it will have a pivotal role to play for the continued existence of a vibrant democracy in the country.
"It is indisputable that the press out of which the visual media in particular wields power, the reach of which appears to be limitless. No segment of the population is impervious to its influence. It must realise that its consumers are entitled to demand that the stream of information that flows from it, must remain unpolluted by considerations other than truth.
"I would think that freedom involves many elements. A free person must be fearless. Fear can be of losing all or any of the things that is held dear by the journalist. A free man cannot be biased. Bias comes in many forms. Bias if it is established as per the principles which are applicable is sufficient to vitiate the decisions of public authorities. The rule against bias is an important axiom to be observed by judges," Justice Joseph said.
The judge said the press, including the visual media, cannot be biased and yet be free.
"Bias ordinarily implies a pre-disposition towards ideas or persons, both expressions to be comprehended in the broadest terms. It may stem from personal, political or financial considerations. Transmitting biased information, betrays absence of true freedom.
"It is, in fact, a wholly unjustifiable onslaught on the vital right of the people to truthful information under Article 19(1)(a) which, in turn, is the bedrock of many other rights of the citizens also. In fact, the right of the press in India is no higher than the right of the citizens under Article 19(1)(a) and is traced to the same provision," Justice Joseph said.
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