The Supreme Court on Thursday said it will first decide on the preliminary objections raised by the Centre that the review petitioners in the Rafale jet deal case cannot rely on privileged documents obtained illegally.
“Only after we decide the preliminary objection raised by the Centre, we will go into other aspect of the review petitions,” said a Bench headed by Chief Justice Ranjan Gogoi. The Bench, also comprising Justices SK Kaul and KM Joseph said that “only if we overrule the preliminary objection, we will go into other details”.
At the outset, Attorney General KK Venugopal, claimed privilege over documents pertaining to the Rafale fighter jet deal with France and said those documents cannot be considered as evidence as per Section 123 of the Indian Evidence Act.
He contended that no one can produce them in the court without the permission of the department concerned as those documents are also protected under the Official Secrets Act and their disclosure is exempted under the Right to Information Act as per Section 8(1)(a).
The Centre objected to the admissibility of those documents annexed by former Union Ministers Yashwant Sinha and Arun Shourie as also activist lawyer Prashant Bhushan in their review petition against the apex court’s December 14 judgment dismissing all petitions against the Rafale jet deal.
While the Centre was making submission that the documents can be withheld from disclosure under the RTI Act in view of the national security, the Bench said Section 22 of the RTI Act gave it an overriding effect over the Official Secrets Act.
The Bench also said that under Section 24 of the RTI Act even security and intelligence establishments are not exempted from disclosing information in relation to corruption and human rights violations.
“The RTI Act brought a revolution. In 2009, your own Government said file notings can be made available under the RTI. Let us not go back now,” the Bench said.
Bhushan said the Centre’s objections were “mala fide and totally untenable arguments”.
The Bench said that “argument on the preliminary issue and the claim of privilege raised by the Government of India is reserved”. It noted further that according to the AG’s submissions “there are three Rafale documents whose publication comes under Official Secrets Act, 1923. These documents were unauthorisedly published. You claim privilege under section 123 of Evidence Act. You want us to adjudicate and strike down the review on this basis”.
After the submission of Venugopal, the Bench asked Bhushan, who was appearing for Sinha, Shourie and himself, that he has the right to reply in writing to the affidavit filed by the Centre on Wednesday.
However, Bhushan said he did not think that there was a need to reply in writing and submitted a note countering the preliminary objections raised by the centre on maintainability of the review petitions, stating that “preliminary objection are malafide and totally untenable arguments”.
He said Government cannot claim privilege over the documents which are already published and is in public domain. He said that Section 123 Indian Evidence Act only protected “unpublished documents”.
Shourie submitted that he was thankful to the Centre and the Attorney General for saying in their affidavit that these are photocopies, proving the genuineness of these documents.
Bhushan further said that provisions of the RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies. He also said that there is no Government-to-Government contract in purchasing Rafale jets as there is no sovereign guarantee extended to India by France in the Rs 58,000 crore deal.
He submitted why the Government didn’t lodge any FIR when these documents started coming out in November 2018. “How can they question leaks when they themselves leaked a document containing notings by the then Raksha Mantri,” Bhushan contended.
He further said that the Government has itself filed a detailed CAG report regarding as many as 10 defence purchases and it is untenable on their part to now claim privilege.
“Rafale is the only case where they redacted pricing details,” he said and countered the preliminary objections raised by the Centre by reminding previous orders of the apex court in the 2G spectrum scam and coal block allocation scam that it is not mandatory to disclose the source in the matter of public interest.
He also cited Pentagon Papers case of USA in which question had arisen as to whether defence documents relating to the Vietnam war could be published saying that the US Supreme Court rejected the claim of national security.