Among the myriad problems the Supreme Court is now being asked to sort out is what constitutes “military secrets” that require punitive action under an obsolete Official Secret Act, one many legal experts feel should have been exorcised from the statute book long ago. The view that their Lordships will take will be closely watched by the media, and beyond, for it is widely suspected that the hot-under-the-collar position that the defence ministry’s affidavit has articulated is a sinister bid to gag a section of the media that has been exposing several uncomfortable angles to the manner in which the Rafale deal was processed. It is worth recalling that when the same newspaper which had played a stellar role with some others in exposing the Bofors gun deal (which had caused the downfall of the Rajiv Gandhi government), leaders of the Bharatiya Janata Party hailed it as a masterpiece of investigative journalism, and one of its senior members rushed to Sweden to try and collect further information. The shoe pinches when it is on the other foot. The capabilities of the aircraft has been made known to the adversary, the affidavit contends: only the MoD must be unaware that all such details ~ even the India-specific modifications ~ are available in the manuals published by the manufacturer. The Rafale has been used in combat (over Libya), so there is not much that is unknown about the fighter. And the documents to which the MoD now objects pertain mostly to the process through which the deal was negotiated ~ is there something about that which embarrasses the ministry? Note that the defence ministry has already backtracked on its assurance to disclose the price being paid for the planes: the Indian taxpayer is not entitled to know how his money is being spent; the minister says the secrecy clause militates against a disclosure. The MoD is also inconsistent about whether the original documents were “stolen”, or photo-copies were accessed by the media ~ is the Sitharaman ship so leaky? And do newspapers have to get all their information only from the publicity-puffs the government puts out as Press Releases?
These are some of the key issues on which the Supreme Court will have to adjudicate in the days ahead. Can the Press be so easily gagged? And can their Lordships make light of the critical reactions of various media organisations to what the Attorney General has said in court. A democratic “fundamental” is under attack, their Lordships have a crucial call to take when the government is becoming increasingly intolerant. To strike a lighter note: Sam Manekshaw once said that anything that did not move for three days in South Block was marked “secret”. Hopefully their Lordships will get the message. Maybe they will go the distance and restrict attempts to abuse a vital freedom courtesy the Official Secrets Act that was not invoked even during the infamous Emergency.