Rafale Deal: SC Reserves Order on ‘Secrecy’ of Leaked Documents
Rafale Deal: SC Reserves Order on ‘Secrecy’ of Leaked Documents
(Photo: The Quint)

Rafale Deal: SC Reserves Order on ‘Secrecy’ of Leaked Documents

The Supreme Court on Thursday, 14 February, reserved the order order on the preliminary objections and the government’s claim of privilege over the documents used by the petitioners seeking review of the apex court’s earlier judgment on Rafale deal.

Attorney General KK Venugopal, began his submissions before the SC stating that the government has made a “mistake” in filing the CAG report on the Rafale deal. He also added that the SC should direct removal of the leaked pages from the review petitions, as the government claims privilege over these documents.

Bhushan argued that Section 123 privilege does not apply to documents which have already been published, adding that the only touchstone to decide admissibility of the documents in question is public interest.

Snapshotclose

  • During the 6 March hearing, Venugopal raised a preliminary objection on the basis that the documents relied on by the petitioners were secret and should not have been used by them
  • The top court is also looking into applications seeking perjury prosecution of government officials for allegedly misleading the court
  • On 14 December last year, the apex court had dismissed a clutch of PILs, including the one filed by Sinha, Shourie, and Bhushan, saying there was “no occasion to doubt” the decision-making process of the Centre in the procurement of 36 Rafale jets from France

Catch all live updates on the SC’s verdict on the Rafale review petitions here.

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SC Begins Hearing Review Petitions on Rafale Case Verdict

The Supreme Court begins hearing the petitions seeking a review of its judgment on the government’s purchase of 36 Rafale jets from Dassault Aviation.

Didn't Seek Cancellation of Deal, Sought a Probe Into It: Prashant Bhushan

Prashant Bhushan explains why they believe the court was misled by the Centre, and the misinformation in the "sealed cover" led to the factual errors in the December verdict.

Bhushan says that the judges didn't address the relief sought by him, Arun Shourie and Yashwant Sinha . He said that they weren't asking for the court to strike down the deal, but instead for the court to direct an investigation by the CBI into it.

The three of them had filed a complaint with the CBI setting out why it looked like there was corruption in the deal.

He further says that the CBI didn't register an FIR, which was why the three of them approached the SC. However, the judges never addressed request, instead only dealing with other petitioners' requests for cancellation of the deal.

Bhushan told the SC that we have also made a supplementary affidavit based on reports by The Hindu's Narasimman Ram. CJI Ranjan Gogoi says, "We don't want any supplementary stuff. We have read what all you have given us."

Congress Attacks Government Over Rafale Deal

Petitions Should be Scrapped as Rafale Documents Stolen from Ministry, Says AG

KK Venugopal raises preliminary objection, says the review petition by Sinha, Shourie and Bhushan and the perjury application filed by them need to be dismissed because they rely on secret documents that should not be public.

He says the documents revealed by N Ram on the deal were stolen from the Defence Ministry. They're supposed to be secret, publication amounts to violations of Official Secrets Act.

'Threat Against Petitioners': Bhushan on AG's Arguments

Prashant Bhushan argues that the Attorney General's statement is a threat against the petitioners which amounts to criminal contempt of court.

'Won't Hear Sanjay Singh's Petition': CJI

CJI informs AAP MP Sanjay Singh's lawyer, Sanjay Hegde, that they will not hear Singh's review petition because he has made derogatory remarks about the court in both Rafale and Alok Verma cases.

The CJI added that Singh might be hauled up for contempt.

KK Venugopal Counters Bhushan's Arguments

Attorney General KK Venugopal counters a point raised by Prashant Bhushan before lunch that the Official Secrets Act is overridden by the RTI Act, which allows file nothings in govt files to be made public.

Venugopal says that the Defence Ministry note that alleged PMO interference in the deal was meant to be kept secret. He further says the word "Secret" on the top of the page was cropped from The Hindu's article. This article has been referred to in review petition evidence.

Venugopal reads it from the Official Secrets Act to show that publication of a "note" can also violate the Act.

"Look at the damage done by publishing this information," he says. He then talks about the need for aircraft to combat F1-16s, saying these objections cause delay.

'Will You Hide Behind National Security If Corruption Has Been Committed?': SC Asks AG

CJI says Venugopal is going off-track. Says he needs to stick to whether or not the review petition can't be heard.

Justice KM Joseph asks him "If a grave crime had been committed, of corruption, are you really going to hide behind national security?"

Joseph further says that illegally obtained evidence can still be admissible if it is relevant. He says Venugopal can make a limited objection on the grounds that the source of the information needs to be disclosed, not that it can't be used.

'They've Come With Unclean Hands': AG Accuses Petitioners of Violating OSA

"They have come with unclean hands," said AG KK Venugopal, adding that publication of the Defence Ministry notes on the Rafale deal violates Sections 3 (spying) and 5 (wrongful communication of confidential information) of the Official Secrets Act.

Venugopal also said that placing this information before the court by the petitioners is “a criminal act.”

Anything Said Or Done by Court Will Be Politicised: Venugopal

Attorney General KK Venugopal argued about how “anything said or done” by the court will be politicised, will be used to destabilise the country.

“Court cannot go into this issue at all. It’s a political issue. Parliament is the authority, the CAG report has also come. Any observation by court will be used politically by Opposition.”
KK Venugopal, Attorney General

Court to Begin Hearing Prashant Bhushan

CJI Ranjan Gogoi said that the Court will now begin hearing Prashant Bhushan.

Same Argument Discarded by Court in 2G, Coal Scam: Bhushan

Prashant Bhushan read out the judgment to show that the very same arguments advanced by the Attorney General KK Venugopal was discarded by the court in both 2G and coal scam cases.

Responding to that, the CJI said:

“If we accept AG’s arguments, we reject the said documents and hear your review petition but minus these documents. But if we reject AG’s submissions, we will see how these documents are relevant to decide the review petitions.” 
Ranjan Gogoi, CJI

Have Recorded Sources for Most Documents: Bhushan

“I have disclosed most of the documents produced here are from The Hindu, Caravan, Indian Express . Have not disclosed source for one document from Ministry of Defence," Bhushan told the SC bench.

CJI Invites Arun Shourie to Argue

“We are here to assist the Court on facts,” former Union Minister Arun Shourie began his arguments, reported Live Law.

"Every person in this country can look into these documents; but the Court cannot. Interesting proposition by AG!" Shourie had remarked during his arguments.

He also said that the anti-corruption clauses in the deal were omitted with retrospective effect overlooking defence ministry's objection.

SC Adjourns Hearing to 14 March

Supreme Court adjourns the matter for further hearing to 14 March at 3 pm.

Nobody Will Get Information on Source of Rafale Docs: N Ram

Documents related to the Rafale deal were published in public interest and nobody would get any information from The Hindu on the confidential sources who provided them, the publishing group’s chairman N Ram said on Wednesday.

"You may call it stolen documents...we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves," Ram told PTI.

Enough Evidence to Prosecute PM in Rafale Scam: Rahul Gandhi

There is now enough evidence to prosecute PM Narendra Modi in the Rafale Scam, Congress President Rahul Gandhi said on Wednesday, 6 March.

“The trail of corruption begins and ends with him. That crucial Rafale files incriminating him are now reported ‘stolen’ by the government... is destruction of evidence and an obvious cover-up,” Gandhi tweeted, using the hashtag #FIRagainstCorruptModi

Editor's Guild of India Condemns AG's Comment on Rafale Deal Before SC

A day after Attorney General told the Supreme Court that Rafale deal documents based on which media houses were reporting were “stolen” from the defence ministry, the Editor’s Guild of India has issued a statement condemning the comment.

“The Guild is perturbed over such threats. These will intimidate the media in general and curb its freedom to report and comment on Rafale deal in particular,” the statement read.

Prashant Bhushan Admits in SC He Made 'Genuine Mistake' in His Tweets

Advocate Prashant Bhushan admitted before the Supreme Court that he made a "genuine mistake" by tweeting that the government had perhaps submitted fabricated minutes of a meeting of the high-powered selection committee on appointment of M Nageswara Rao as an interim CBI director.

Attorney General KK Venugopal told a bench comprising justices Arun Mishra and Navin Sinha that in view of Bhushan's statement, he would like to withdraw his contempt plea filed against the noted lawyer.

Chidambaram Demands Publications of Rafale Deal Papers

Senior Congress leader P Chidambaram demanded publication of all documents related to the Rafale aircraft deal, saying Article 19 of the Constitution ensured people's rights regarding freedom of speech and expression.

He also said the celebrated judgement of the US Supreme Court in 1971 in the case of the Pentagon Papers was a "complete answer" to the attorney general's arguments that the media cannot publish "so-called secret papers".

"We fully support the publication of documents pertaining to the Rafale deal. The argument that they are 'stolen papers' flies in the face of Article 19 of the Constitution," he said in separate tweets.

The Article 19 of the Constitution ensures protection of certain rights regarding freedom of speech and expression besides others.

On 30 June 1971, the Supreme Court of the United States overturned the Richard Nixon administration's effort to restrain 'The New York Times' and 'The Washington Post' from publishing a top-secret history of the Vietnam War called the Pentagon Papers.

Documents In Review Plea Sensitive, Putting National Security in Jeopardy: MoD

The Ministry of Defence in its affidavit before the Supreme Court on Wednesday, 13 March, says the documents attached by the petitioners in the Rafale review case are sensitive to national security which relates to war capacity of combat aircraft, ANI reported.

The affidavit also said “those who have conspired in this leakage are guilty of penal offences including theft by unauthorised photocopying and leakage of sensitive official documents affecting National Security. These matters are now subject of an internal enquiry which commenced on 28 February.”

SC to Hear Review Petitions at 3 pm

The Supreme Court will resume hearing arguments on the Rafale review petitions at 3 pm. The bench will hear arguments on whether the review petitions should be heard or not, before going into the merits of the petitions.

During the last hearing on 6 March, Attorney General KK Venugopal raised a preliminary objection on the basis that the documents relied on by Prashant Bhushan, Arun Shourie and Yashwant Sinha (who have filed one of the review petitions) are secret and should not have been used by them.

The petitioners have relied on documents revealed by The Hindu’s N Ram and other journalists which show irregularities in the procedure for the Rafale deal which they argue were not revealed to the Supreme Court during proceedings last year. As a result, they say, the SC’s December verdict on the Rafale deal contained factual errors.

Govt Made a Mistake in Filing CAG Report: AG Venugopal

Attorney General KK Venugopal, began his submissions stating that the government has made a “mistake” in filing the CAG report on Rafale Deal.

"The first three pages are missing and hence, the government also wants to bring those pages on record too," said Venugopal.

Direct Removal of Leaked Pages from Review Petition: AG

Attorney General KK Venugopal also added that the SC should direct removal of the leaked pages from the review petitions, as the government claims privilege over these documents.

“What privilege do you (Attorney General) claim? They have already produced them in court,” the SC Bench asked Venugopal to which he replied that it was produced after “stealing.”

Section 123 Privilege Applies to Documents that Aren't Public: Bhushan Responds

The Supreme Court while referring to RTI Act has overriding effect on Official Secrets Act as per Section 22 and Section 24 of the RTI Act said that “even intelligence and security establishments bound to give information about corruption and human rights violations.”

"This is a totally untenable argument", said petitioner Prashant Bhushan, referring to AG's argument on privilege under Section 123 Evidence Act.

He cited Supreme Court precedent to say that public interest is the test to decide whether disclosure can be prevented.

“Section 123 privilege applies to documents which haven’t been made public. This doesn’t apply to documents which have already been published. Therefore government can’t use this to stop SC from considering the documents,” said Bhushan.

Govt's Priority to Protect Officials: Bhushan

"The primary concern on the Government is not national security, but the protection of government officials who have interfered with the negotiation process in Rafale deal,” Prashant Bhushan argues before SC Bench.

He also submitted that there has been no instance so far of pricing details being redacted in CAG report.

Bhushan added that the Centre has leaked information to "friendly media" such as the notings of the Defence Ministry, reported Live Law.

How Did the Govt Know About CAG Report in November: Bhushan

"How could the Government have known in November that the CAG will table only a redacted report without pricing details?", asked Prashant Bhushan, reported Live Law.

He added that this showed the government's argument on secrecy is an afterthought.

Stick to Preliminary Objections: CJI to Bhushan

The Chief Justice of India Ranjan Gogoi asked petitioner Prashant Bhushan to focus on the preliminary objections, regarding admissibility of the leaked documents.

"Once we get over the AG's preliminary objections, we can hear you on other aspects," the CJI said, reported News18.

Forced to Tell CAG to Redact Certain Details: AG

The Attorney General interjected to respond to Prashant Bhushan's submission on redacted CAG report.

“The agreement was government to government. We were bound to keep details secret. We were forced to tell the CAG to redact certain details,” said Bhushan, reported The Hindu.

There is no government to government contract in Rafale jets deal as there is no sovereign guarantee by France, Bhushan told SC.

Relevant Docs Cannot be Ignored Even if Procured Illegally: Bhushan

Prashant Bhushan further argued that in the 2G spectrum case, the Supreme Court had turned down former CBI Director Ranjit Sinha's request to disclose identity of whistleblower who had accessed the visitors Register at Sinha's residence.

“It is completely irrelevant if a document was obtained in an illegal manner,” said Bhushan.

He also referred to Section 15(2),(3) of the Press Council Act to assert that journalistic privilege to protect sources is recognised by law.

He also referred to ‘Pentagon Papers Case’, to say that the apex court in US allowed publication of documents though they were related to Vietnam War.

“Secrecy in government functioning is the antithesis of democracy,” Bhushan quoted a line from the case.

Bhushan returned briefly to the argument that Section 123 privilege does not apply to documents which have already been published, adding that the only touchstone to decide admissibility of the documents in question is public interest.

Privilege Doesn't Apply When Document is Published: Dhandha's Lawyer

Advocate Vikas Singh, who represents Vineet Dhandha (another petitioners) also pointed out that section 22 of the RTI Act has an overriding effect on Section 123 of the Evidence Act as well.

“So even if documents considered published, privilege doesn't apply,” Singh said.

Thank You for Revealing the Genuineness of these Docs: Shourie to AG

Former Union Minister and petitioner Arun Shourie ‘thanked’ the attorney general for saying in their affidavit that the documents are photocopies.

“They have proved the genuineness of these documents," said Arun Shourie.

SC Reserves Order on Preliminery Objections

The Supreme Court reserved the order order on the preliminary objections and the government’s claim of privilege over the documents.

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