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SC decision is a big boost to free speec

April 11, 2019 06:50 AM


SC decision is a big boost to free speech
By R K Handoo

The Supreme Court verdict in the Rafale controversy is another milestone towards upholding freedom of speech and expression. In the case of S.P Gupta V/s. Union of India, (1981), the Supreme Court had declared that nothing is secret except the security of the state, while in the Rafale review petition it has adopted the wisdom of the US Supreme Court that the press should serve the governed and not the governors while dismissing the plea that publishing the papers about the defence deal is a violation of the Official Secrets Act.

That the flames of secrecy cannot engulf public interest is recognised in this verdict. This decision also recognised that suppression of facts with too much severity would only invite opaqueness in governance to the ultimate detriment of the State. The history of securing this freedom of speech and expression by mankind cannot be summed up in this column, however, suffice it to say that we were lucky to get it in our Constitution and the Supreme Court has preserved it in its true sense as a guardian.

The plea that the published papers were stolen and would affect the security of state was rejected, thereby upholding the freedom of press which flows from the right of freedom of speech and expression enshrined as a fundamental right in our Constitution. With this verdict, the Supreme Court has recognised transparency as a hallmark in governance and the duty of the press to prevent any part of the government misinforming the people. The verdict has, in fact, recognised the observations of Justice Hugo Black in the case of New York Times versus USA, where publication was made of secret Pentagon papers showing that successive US governments had misinformed the people about the war in Vietnam where men and material were sacrificed though the government knew it was a losing and futile battle.

Here, on one hand, was the draconian and archaic Official Secrets Act entailing harsh punishments including long incarceration and, on the other hand, was the right of a journalist to publish material against the government in pursuit of his investigatory journalism while exercising the right of freedom and expression enshrined as a fundamental right under article 19(1)(A) of the Constitution of India. The Supreme Court has chosen the path of freedom and expression.

The plea that documents in the Rafale case were stolen and related to the security of state was rejected upholding the test of “public interest”. The principle is that the right of freedom of speech and expression overrides all other pleas. I can beg, borrow or steal the documents for my defence in a criminal trial is recognised. The test is not how I procured it but test is its relevancy. This decision has protected investigatory journalism where a journalist is not required to disclose his/her source of the information as long as the information is relevant and in public interest.

Press as the fourth pillar of democracy cannot survive if it is weak. Dissent is not sedition but a sinew for strong democracy. Press with sword of prosecution looming large on its head is to guillotine the freedom of expression to the ultimate detriment of State.

The Supreme Court of India, by accepting the review of its own judgement in Rafale, has put the fundamental right of freedom of speech and expression on a higher pedestal.

(The writer is a well-known criminal lawyer who practises in SC and Delhi high court)


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