The government’s objection to the Supreme Court considering what Attorney-General KK Venugopal called “stolen documents’’ in taking a decision on the review petitions in the Rafale case is wrong and ridiculous. The Attorney-General wanted the court to dismiss the petitions because the documents relating to negotiations on the Rafale aircraft, which have come out into the public domain, were “stolen’’ from the government. The government also threatened to initiate “criminal action’’ under the Official Secrets Act against two publications which published reports on the basis of these documents. It is an embarrassment for the government to have to admit that top secret documents were stolen from its vaults. But it probably thought the consequences of an adverse court decision in the case would be much worse than this embarrassment. The question what the government has done in the matter of the ‘theft’ in the one month since the publication of the documents is relevant. The government has not mentioned the matter of ‘theft’ of ‘official secrets’ in parliament or outside any time till now. 

The court posed to the government some more important questions. It seemed to answer them, too. One is whether the government can take shelter under the argument of national security and secrecy laws when a crime or corruption is involved, and the other is whether “stolen documents’’ could be rejected as evidence. The court’s tone suggested that the answer to both questions should be in the negative. The documents raised no national security issues. They only exposed the deficiencies and irregularities in the decision-making process of the government in the Rafale purchase. The real security issue is the inability of the government to guard vital and sensitive documents. What if such or other documents fall into enemy hands?

The court also said that there is nothing in the law which bars consideration of stolen material as evidence. Courts have in the past considered such material in cases relating to 2G spectrum, coal block allocation and the Bofors gun deal. Courts have also rejected arguments and government actions against publication of ‘unauthorised’ documents by the media. Media disclosures in India and abroad, such as the Pentagon Papers, Wikileaks and in the Bofors scandal, have advanced public interest. The government’s argument against publication of such material is a threat to freedom of the press and citizens’ right to know. The Official Secrets Act, like the sedition law, is not in sync with the right to free speech and the norms of transparency that are basic to a democratic society. The court should reject the government’s self-serving and dangerous argument and uphold the rights of the free press.