Just when there was increasing apprehension about the impartiality of many of our institutions, two of them have given orders that should for a while temper the fears. Yesterday, the Supreme Court in the Rafale case made a pair of very strong points in its judgement, upholding the freedom of the press to publish "secret" government documents and agreeing that these documents could be scrutinized by the court in its review of the Rafale deal.
In two separate judgements, one by Chief Justice Ranjan Gogoi and Justice Sanjay Kaul and the other by Justice KM Joseph, the court unceremoniously rejected the government's somewhat ridiculous plea that secret documents in the public domain could not be used to review government actions. The court said that since "in the present case as the document(s) being in public domain...it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value."
Much more importantly, the court reaffirmed the right of the press to publish such documents arguing that there was nothing in the Official Secrets Act or any other act that prohibited such publication and "the publication of the said documents in 'The Hindu' newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions" (emphasis added).
At a time when the India's press freedom ranking has fallen to 138 on an index of 180 as violence and threats of violence against the press and journalists have increased, this reaffirmation of the freedom of the press by the Supreme Court could act as an important stimulus to the media to move away from the "self-censorship (that) is growing in the mainstream media..." according to Reporters Sans Borders annual review.
Coming as it does at a time when there are general elections taking place in the country, the media should take the Supreme Court's judgement as the cover it needs to re-affirm its freedom. That means that self-censorship, removing parts of interviews and selective editing that seem to be the norm, should stop. More importantly, the manipulation of data in opinion polls, to provide palatable results should end.
On the other side of Lutyen's Delhi, the Election Commission, which has been receiving a barrage of criticism for its lack of visible neutrality on issues ranging from the number of phases of voting (seven) to its weak reprimand of UP Chief Minister Adityanath for his remark on "Modi-ji ki Sena" was prodded by the Supreme Court on Tuesday to deal with whether the biopic on Modi should be released today. The court had directed the Election Commission to deal with the issue and see "whether the film will tilt the electoral balance in favour of any political party".
So, belatedly, after ducking the issue for the last couple of weeks, the Election Commission was forced to issue an order banning all biopics. Quoting chapter and verse from Supreme Court judgements, the Election Commission discovered that it had powers under the Model Code of Conduct to ban "any biopic material in the nature of biography/hagiography sub-serving the purposes of any political entity...which has the potential to disturb the level playing field during the elections."
Of course, before the Election Commission gets a full round of applause from the "disbelievers", it will have to show the courage to act with neutrality without being pushed to. The public will continue to watch how it monitors the continuing controversy over the regular violations of its order to politicians to not invoke the armed forces to seek votes in their favour. The worry remains that on both the biopic issue and the VVPAT one, the Election Commission has only acted after the top court ordered it to. That is neither a healthy trend nor one that can be sustained. On the VVPAT matter, it could easily have done what the Supreme Court eventually called for - adding 5 VVPATs per assembly - and given the impression of neutrality and of understanding the concerns of the opposition without extending counting.
What matters in law is often not whether the judgement is absolutely fair and correct, but that there has been a due process, the appearance of fairness and of maintaining a balance. Interestingly, in the US Supreme Court where the "conservatives" are now in the majority, Chief Justice Roberts, a Republican nominee, has been seen as supporting the "liberals" in order to maintain a court images of being neutral and fair.
(Ishwari Bajpai is Senior Advisor at NDTV.)
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