The Hon’ble Supreme Court while agreeing to hear petitions seeking review of its verdict in Rafale case has held that leaked papers were admissible and rejected Centre’s objections. The Court further observed, inter alia, that there was no legal provision that could stop publication of a document marked secret.
While legal luminaries and erudite pundits will no doubt parse the verdict as to its intricacies and nuances, this is the loud thinking of a layman who has the utmost respect for Judiciary and has held for long the view that Judiciary has remained the last bastion of rectitude in the country.
It is the prerogative of the Government to classify a document as secret. It could be a personal file of a peon or a submarine manual or the nuclear code. Whether the subject matter merits to be treated as secret or not is the Executive’s call, not anybody else’s.
Once the document has been classified as secret, any unauthorized access to it is but thievery. It cannot be otherwise. In other words only if the access is duly authorized by the Government, can such access be termed legal. In the instant case, it is illegal because the secret documents were photocopied by clandestine access. Simply put, you have taken a Government document without its permission. The information obtained and passed on can thus only be termed as stolen.
Government has repeatedly clarified that the documents are outside the ambit of RTI Act, thus out of the public domain. What is not in the public domain is in the exclusive domain of the Government. Any intrusion into that privacy is transgression, untenable and unjustifiable.
Now the possessor of the stolen information is not entitled to it nor can he make free use thereof merely because of possession. ‘A’ steals s bike and sells it to ‘B’ and ‘B’ buys it i and pays the price. Mere payment of the price does not confer on ‘B’ the rightful ownership of the bike. A stolen bike remains stolen and the Police will be justified in repossessing it from ‘B’ The buyer is not exculpated because he was unaware of its being stolen.
Such being the case, on the same analogy, how can the Maha Vishnu of Mount Road (now dwindled into a disguised pamphleteer of moribund Marxism) use the material and claim immunity under Freedom of Press. The original material itself is stained and thus publication thereof is legally questionable. The Hindu may at beast take shelter under Freedom of Press for not disclosing the source but it cannot escape responsibility for publishing a document not secured legally.
The next question is admissibility of such stolen document as evidence in a Court of Law. Now, if a conversation is tapped and recorded and such tapping does not have the prior authorization from a judicial authority, such tapped and recorded conversation is inadmissible under the Law. A person could have said in a tapped conversation he had committed a murder but the tape cannot be used against him unless the tapping was in the first place duly judicially authorized. It is a well settled tenet.
If a residence is searched and incriminating documents are seized, no matter the gravity and explicitness of the contents of such documents, they are inadmissible in a Court of Law unless the search is carried out after obtaining the due authorization from a judicial authority. Leave alone the vaults of the Defence Ministry, if the documents are taken even from your home, the same rule holds.
The litmus test is thus legal access to the documents and acquisition thereof in a legitimate manner.
Such stolen documents concerning Rafale today may tomorrow be about a nuclear submarine or details of war preparedness. How can we ratify such larceny? Lest one forget, complete manual of operations of an Indian submarine was published in Australia raising a very serious security threat. Can we condone such thievery?
Consider another scenario. Suppose the draft verdict of a sensitive case in Supreme Court, pertaining to, say, a religious dispute or a corporate war, involving communal or financial repercussions, or the proceedings of a Collegium meeting are leaked and published, will the same equanimity be maintained, can we maintain that no law or regulation forbid such thievery? Will it be kosher for a newspaper to publish it? If hacking of a personal computer or laptop is illegal, it follows accessing unauthorisedly a Government file stealthily and copying papers marked secret is equally illegal.
The PM was hounded till the very last day of 2014 election. SIT after SIT was set up but he was exonerated. Not content, at the last minute they slapped a snoop gate on him, though the lady involved and her mother said no such thing took place and they had no complaint. In a déjà vu scenario, it’s clear they are straining every sinew to besmirch his name in any manner whatever.