Rafale Documents ‘Stolen’ From Defence Ministry: Govt Tells SC

The petitioners have alleged crucial facts were suppressed when SC dismissed a batch of PILs against Rafale deal.

(Photo altered by The Quint)

The government on Wednesday, 6 March, told the Supreme Court that the documents related to the Rafale aircraft deal – which were the basis of N Ram’s explosive revelations in The Hindu – were “stolen” from the Defence Ministry and that the review petitions relying on these documents should be dismissed.

Several petitioners have filed review petitions against the Supreme Court’s Rafale judgment of December 2018. One of these petitions alleges that the Centre suppressed crucial facts when submitting information about the deal in ‘sealed covers’ to the judges back then, which led to several factual errors in the judgment.

Former Union Ministers Yashwant Sinha and Arun Shourie, along with advocate Prashant Bhushan, had filed this petition, in which they have submitted details from N Ram’s articles as well as other news reports that came out after the judgment. On the basis of this information, they have also filed a perjury application against the central government.

A three-judge bench comprising Chief Justice Ranjan Gogoi, and Justices SK Kaul and K M Joseph heard arguments from the petitioners and Attorney General KK Venugopal, representing the Centre. The proceedings were not completed, and will resume on 14 March at 3 pm.

Here's is a breakdown of the court proceedings:

Senior Advocate Prashant Bhushan told the apex court that the judges didn’t address the relief sought by him, Arun Shourie and Yashwant Sinha. They weren’t asking for the court to strike down the deal; instead, they were asking the court to direct an investigation by the CBI into it, he said.

The three of them had filed a complaint with the CBI. According to the SC’s Lalitha Kumari judgment, if the police receive a complaint, which discloses a “cognisable offence”, they have to register an FIR. The CBI didn’t register an FIR or launch a preliminary inquiry, which was why the three of them had approached SC last year.

However, the judges never addressed this request, instead, dealing with other petitioners’ requests for cancellation of the Rafale deal. This was the first ground on which Bhushan said a review petition was required.

Bhushan explained why the petitioners believed the court was misled by Centre, saying that misinformation in the “sealed cover” led to the factual errors in the December verdict by the court.

"If all information had been placed before the court, they wouldn't have believed the procedure followed was okay," Bhushan added.

He then started reading from the dissent note reportedly filed by three members of India’s Negotiating Team in the Rafale deal, to demonstrate that certain facts were withheld by the Centre from the apex court.

Attorney General KK Venugopal objected, and said that the documents referred to by the petitioners are “stolen” and their publication violates the Official Secrets Act. He added that the government is considering initiating criminal proceedings.

He also said there is an ongoing investigation to find out how these documents were leaked.

Raising a preliminary objection, Venugopal said that the review petition by Sinha, Shourie and Bhushan, and the perjury application filed by them should be dismissed because they relied on secret documents that should not be public.

The attorney general argued in court that the documents revealed by journalist N Ram and other journalists on the Rafale deal are supposed to be secret. The Centre is considering prosecuting the newspapers who published these and petitioners relying on them, the A-G said.

Bhushan opined that this statement by the attorney general’s statement was a threat against the petitioners, and amounted to criminal contempt of court since it sought to influence proceedings before the court.

Venugopal said that the Defence Ministry note, which referred to PMO’s interference in the Rafale deal, was meant to be kept secret. He said the word “secret” on the top of the page was cropped out of The Hindu article by N Ram. This article has been referred to in review petition evidence.

Reading the Official Secrets Act, Venugopal said that the publication of that "note" can also violate the Act.

"Look at the damage done by publishing this information," the A-G said. He then spoke about the need for aircraft to combat F16s fighter jets, saying these objections cause delay in procurement.

To this, the CJI said Venugopal was going off-track and the A-G needed to stick to the topic of the review petition. Justice KM Joseph asked the A-G “if a grave crime had been committed, of corruption, are you really going to hide behind national security?”

Justice Joseph further said that illegally-obtained evidence can still be admissible if it is relevant, and that there were several judgments of the Supreme Court to that effect, leading to a fractious argument with Venugopal who insisted this wasn’t the case.

Justice Joseph noted that Venugopal could make a limited argument that the information was privileged and required government consent before it could be used as evidence under section 123 of the Evidence Act, but not that the information could not be used.

Venugopal cited a 2004 SC judgment by Justice Arijit Pasayat to say that if a petition relies on illegally-obtained evidence, the petition is liable to be dismissed.

"They have come with unclean hands," Venugopal remarked. He said the publication of the Defence Ministry’s notes on Rafale deal violated Sections 3 (spying) and 5 (wrongful communication of confidential information) of the Official Secrets Act.

The attorney general also insisted that illegally obtained information, if relevant, could only be used as evidence if the source of the information was disclosed.

The judges did not accept this and asked him what legal authority he had to back him up. Venugopal said he would submit a case on this point.

The A-G kept insisting that the review petitions and leaks regarding the deal were detrimental to national security. When asked by Justice Gogoi if this meant the court would have to ignore a document, which revealed a serious crime had been committed if it was obtained illegally, Venugopal replied that the document should not be relied on.

Justice KM Joseph asked him if this principle should also have been applied to the cases filed regarding the Bofors deal. Justice Sanjay Kishan Kaul was skeptical about the argument and asked how the court could disregard the documents once they had been brought to the court’s attention.

The A-G responded that in certain cases, like corruption in environment matters, or roads or dams, it would be okay to rely on leaked information since it didn’t prejudice national security. But according to him, this couldn’t be done in defence matters that involved national security.

Justice Kaul said that even if this argument was accepted, they couldn’t ignore cases and documents, which would “shock the conscience of the court.”

Attorney General KK Venugopal then raised an argument that caused eyebrows to be raised throughout the courtroom. He said that the Rafale controversy was heavily politicised and that anything the Supreme Court said or did would be misused by the Opposition to “destabilise” the government. “Do your Lordships want to be party to this exercise?”

According to him, only Parliament has the authority to question or examine the deal, not the courts. Again, CJI Gogoi had to ask him to stick to the issue at hand when he went on a tirade about how certain issues were beyond the judiciary’s purview.

He concluded by saying that official government documents are protected by privilege and can only be used as evidence in court with government consent under Section 123 of the Indian Evidence Act – which the Centre didn’t intend to give.

Prashant Bhushan was asked by the judges for his response to the A-G’s argument. He pointed out that a similar claim, that he couldn’t use official documents and that using them violated the Official Secrets Act, had been rejected in 2015 by the Supreme Court.

Ranjit Sinha had objected to the PILs filed by Bhushan regarding the coal scam cases in which he had relied on CBI files that had been leaked to him. Bhushan said the apex court had said the information was used in public interest and so he could not be prosecuted under the OSA.

The CJI told Bhushan that if they accepted Venugopal’s argument, then the review petitions would proceed, but the petitioners wouldn’t be able to rely on the “stolen” documents. If they rejected Venugopal’s argument, then these documents and others could be considered if relevant.

Arun Shourie pointed out that far from breaking the law, the petitioners actually had a duty to submit these secret documents to the court, since they proved that the Centre had misled the court, or suppressed information which was relevant to the judgment.

At this point, the judges decided to adjourn the matter till 14 March, when they will continue to hear the arguments by Bhushan and Shourie against the Centre’s attempt to get the review petitions and perjury applications dismissed.