The Central government told the Supreme Court on Wednesday (March 6) that files relating to the Rafale deal negotiations were “stolen from the Ministry of Defence”. It also alleged that media reports citing details of the pricing and the decision making process “violate Official Secrets Act (OSA)”.
Opposing the review petitions filed in the Rafale deal case, Attorney General KK Venugopal argued that the Supreme Court cannot look into the “additional evidence” being submitted by the petitioners.
Former Union minister Yashwant Sinha, Parliamentarian Arun Shourie and advocate Prashant Bhushan had filed a joint petition seeking the court’s permission to submit detailed news reports pointing out violations of the Defence Procurement Procedure (DPP).
The news reports, published in The Hindu on February 8 and news agency ANI, show file notings and extracts from MoD, indicating that the Indian negotiating team as well as MoD and the law ministry had opposed the purchase of 36 Rafale jets. The report also seem to indicate that the government bypassed the procurement process.
The Centre has however taken the stand that since the allegations are based on “stolen documents”, it cannot be used as evidence.
Attorney General KK Venugopal argued that the Supreme Court is not even entitled to see the pricing details since it is a “national security matter”, which “does not come under judicial scrutiny”.
“Judicial review of Rafale will affect future purchases. Countries will think twice before entering onto agreements with us [India] due to the delay. We have to pass hurdle of Parliament approvals, then the questions by the media and then courts. It takes time,” said Venugopal.
“It’s a question of secrecy and security. Court cannot go into this issue at all,” said the AG, adding that there have been a “number of attacks on the government in Parliament over this issue.”
He also argued that it is the Parliament, not the SC which could raise questions regarding the pricing.
“There is an alternative authority that went into it. It’s a political issue… any observation by the court will be used by the Opposition to destabilise the government and therefore court should not get into Rafale issue,” he added.
The government prosecutor also told the court that a Comptroller and Auditor General (CAG) report on the Rafale deal has already been tabled in the Parliament and the “Parliament has its own machinery” to deal with the controversy.
The top law officer however, failed to explain the delay by the Centre in investigating the alleged “leak.” The AG told the court that preliminary investigation on the file notings had started but no FIRs have been registered so far.
Chief Justice of India (CJI) Ranjan Gogoi asked,”The report was published on February 8. What have you done about it?”
The government then said that preliminary investigations were being conducted and argued that the newspapers “should reveal how they got the documents.”
“The relevance of the information depends on the source of the paper. How did they get it? Who in the Defence Ministry gave them the documents? Was it a retired officer in 2015 or a sitting officer? They have come with unclean handsThe issue is of wrongful possession of information. The Hindu, ANI and Prashant Bhushan should reveal their sources,” said the AG.
Staunchly opposing the Centre’s argument, advocate Prashant Bhushan argued that confidential sources were required to be protected as whistleblowers because they were “acting in public interest”.
He also told the apex court that similar “leaked files” had been made the basis of investigation into high level bribery cases against former director Ranjit Sinha and the coal block allocation case.
The attorney general in his arguments also alleged that a particular newspaper was “attempting to influence the mind of the court,” by releasing an article on the financial implication of the Rafale deal, on the day of the crucial hearing before the apex court.
“The word ‘secret’ is there at the top of the page. Petition has attached the page in the file and blocked out the word ‘secret’– this is a violation of the official secrets act,” argued the AG.
He added that OSA could be imposed and FIRs registered against the publishers of two newspapers and one news agency.
“The OSA says that any person who accesses secret documents that may affect sovereignty and integrity of India is guilty,” said the AG. The court, however, questioned the Centre’s argument.
Justice KM Joseph said, “The issue is that the law of the country has been broken by corrupt practice. The matter is with regard to the corruption. You are saying the corruption cannot be looked into because the evidence is from an illegal source. That’s not the law in India Even stolen evidence can be looked into, provided it is relevant and it’s authenticity is proved.”
Bhushan and Arun Shourie argued that they wanted to submit the media reports “to answer a question raised by the court” on the validity of the procurement process.
“We worked to get the documents to show that the facts given by the government are point by point false. They did not disclose to you that the clauses were retrospectively deleted and altered. Anti corruption clauses were deleted — all of this was not disclosed to the court. All of this was suppressed by the government,” said Shourie.
Bhushan said that the allegation of violation of the OSA was “an attempt to intimidate the petitioners and influence the outcome of the case.”
He argued that the government lawyer should face contempt of court charges for trying to prevent the petitioner from filing relevant evidence by “intimidation vis threat of prosecution.”
The court will on March 14 continue hearing arguments on the issue of whether the news reports based on the “stolen papers” can be admitted as evidence before the bench.