Rafale: India's 'Pentagon Papers' Moment?

The test of 'clear and present danger' is identifiable with two eminent Justices of the Supreme Court of America, Justice Oliver Wendell Holmes and Louis Dembitz Brandeis. In their judgment in Schenck v. United States, they presented for the first time a test to decide whether a speech or an article written presented a 'clear and present danger' of imminent and serious illegal conduct that the government could restrain legally. The test of 'clear and present danger' seems very simplistically to mean a bad tendency, capable of presenting a real and imminent (immediate) danger.

The test was designed to keep the Government's hands off the speaker until the danger was proven to be both imminent and serious. In 1969 the Supreme Court of the United States (SCOTUS) came up with a test very similar to that of the Holmes-Brandeis' test - the 'Imminent Lawless Action' test, under which speech/publication that 'intended' to incite a violation of the law which was both 'likely' and 'imminent' could not be protected by the First Amendment . According to this test as laid down in Brandenburg v. Ohio, free speech was protected only if it met two conditions - the first one being to ascertain subjectively if the defendant intended to bring about imminent illegal conduct and the second one to probe objectively whether the imminent danger arose out of the defendant's advocacy of illegal conduct by way of speech or publication which would threaten National Security. This test was devised by the SCOTUS to protect free speech as a safeguard against the Government's over-prediction of danger.

Pentagon Papers

Two prominent dailies - The New York Times and The Washington Post- published a series of articles on the basis of leaked 'Classified Defence' documents which showed that United States military involvement in Vietnam was actually a failure, contrary to the propaganda of the government under President Richard Nixon. The publication of these reports, called "The Pentagon Papers", was sought to be stopped by the Nixon administration on the ground of national security. The Nixon Government brought a federal injunction against continuing publication of the 'Pentagon Papers' on both the New York Times and the Washington Post resulting in the papers knocking on the doors of the SCOTUS in 1971.

Several issues came up to the fore in the case of New York Times v. United States like:

● The legality of the 'prior restraint' by the Federal government on the newspapers curbing any further publication of the 'Pentagon Papers'.

● Whether such restraint by the government violated the first amendment rights of free speech that the American Press enjoys as expressly mentioned in the First Amendment?

● The test that the Supreme Court used to decide the merits of the case?

● Whether restraint could be brought about on the publication of 'Classified Information'?

After a hearing lasting for 15 days, the SCOTUS, in a 6-3 Judgment delivered in favor of the New York Times, allowed continuation of publication setting aside the restraint order.

Relying on Justice Oliver Wendell Holmes' clear and present danger test, Justice William J Brennan, held that the threat to national security was vague since the publication did not cause any immediate danger imperiling the lives of the armed forces or civilians. Justice William O. Douglas held that the 'Espionage Act' of 1917 that the Government relied on, did not support the case.

In his words, Justice Hugo L. Black held that "Only a free and unrestrained press can effectively expose deception in government". Justice Byron R. White refused the right to censorship to the government on the grounds of lack of authorization by the Congress. Concurring with the rest, Justice Potter Steward and Justice Thurgood Marshall also agreed that in the absence of specific laws by the Congress the Executive should be denied censorship powers.

The outcome of the case was the Court ruling that government censorship in this case involving national security was unconstitutional and was in violation of free speech guaranteed by the First Amendment.

Striking parallels with Rafale review

Similar circumstances seemed to have engulfed the Supreme Court during the hearing of Rafale review petitions.

The case pertains to the controversial procurement of Rafale Fighter Jets for the Indian Air force from the Jet-maker Dassault, which was to be routed through an off-set contract to be given to an Indian Company Reliance Aerostructure Limited (RAL). The case was heard and dismissed by the Supreme Court in December 2018 on the grounds that it had no reason to intervene in a sensitive issue and also backed the deal stating that the country could not afford to be unprepared in having the latest combat aircraft while India's adversaries were way ahead as they were in possession of the 4th and 5th generation air combat aircrafts. The Court also went on to state that it did not find any substantial material on record to show that there was any commercial favoritism to any company by the government as the off-set partner was decided by the French counterpart.

The original petitioners Prashant Bhushan, Yashwant Sinha and Arun Shourie petitioned the Supreme Court in February 2019 for a review of its December 2018 Rafale order on the ground that due to factual errors the verdict had to be corrected.The Petitioners contended that the Court had been misled by the Central Government which suppressed relevant information and provided providing false information and therefore sought perjury proceedings against the concerned officials.

To advance their points, the petitioners referred to media revelations, such as  series of reports published by N Ram in The Hindu on Rafale deal.

The contentious part of the case seems to have stemmed up at this point as the Attorney General stated that the petitioners were presenting 'stolen' evidence before the Court which was stolen from the Ministry of Defence by an employee and therefore the evidence of stolen documents cannot be admissible in the Court and later stated that the evidence could be admissible if the source of the information was revealed.

One wonders, if there is conflict between the journalistic privilege to protect the source and a pressing judicial demand to reveal the source, which one would prevail? 'The Whistle Blowers Protection Act', 2014 contemplates protection of the identity of sources. However, the Act is yet to be notified. A reprieve to the current situation lies certainly in the fact that the source of the information is protected by an International covenant - the International Covenant on Civil and Political Rights. Under its General Comments- 34, a 13-page document titled the 'Journalistic privilege' is provided under Article 19 of the ICCPR. The said Article aims to protect journalists' sources and news gathering process under 'Not to disclose information sources'- forming part of journalistic privilege under Article 19 of the ICCPR. According to the document drafted by the United Nations Human Rights Committee in the year 2011, the committee has explicitly provided that 'Journalistic privilege is part of freedom of expression, which is one of the Fundamental Human Rights' and therefore constructive journalism in reporting solution-based news is given significance. Investigative journalists sometimes play the role of whistleblowers who expose criminal offenses like corruption, misuse of power and nepotism of government servants in 'public interest' and therefore need to be protected.

The Attorney General also stated that as the documents were marked 'secret' and 'classified documents', the publications would amount to an offense under the Official Secret Act a colonial anti-espionage legislation, and that prosecution would be initiated against 'The Hindu'. The Attorney General further contended that reports aimed at influencing the court, which amounted to contempt of court. To this, Justice Joseph questioned as to whether the government could take shelter under the Official Secrets Act and national security when the case pertained to allegations of corruption?

The petitioners pointed out that similar leaks of information have earlier brought the 2G and coal gate scams to the fore. The 'Hindu' newspaper in the past has exposed the Bofors scam too.

The case raises a few fundamental questions of law as there seems to be a tussle between the Right to Information Act and the Official Secrets Act. The question that comes to the fore is whether the colonial Official Secret Act 1923 can be invoked by governments to suppress the 'Press', which enjoys the right to publish by virtue of guarantee provided by the Indian Constitution under Article 19(1)(a)? Does the Official Secret Act really apply in this case? Can a citizen's right to information which is also implicit under article 19(1)(a) can be curtailed by the threat of OSA?

These questions make this a 'hard case', if not a 'great case'!

Justice Holmes once remarked - "Great cases, like hard cases, make bad law". By great cases, Justice Holmes meant cases that were controversial and attracted a great deal of attention. In his words "'hydraulic pressures' of the great case tend to distort the judgments of the Justices".

Let us wait and see how the Supreme Court will resolve these tensions in law and hope that this 'great case' will go on to make a 'good law'.

(Babitha N.S is an adjunct faculty of law at the University Law College, Bangalore University. Views are personal)