Rafale back to haunt Centre

The Supreme Court dealt a major blow to the Centre by allowing the use of leaked documents to the petitioners seeking review of its Rafale judgement. The apex court also dismissed the government’s preliminary objections claiming “privilege” over them.

The Centre had submitted that the three privilege documents were unauthorisedly removed from the Defence Ministry and used by the petitioners to support their review petitions against the December 14, 2018 judgement of the apex court which dismissed all pleas challenging the procurement of 36 Rafale fighter jets from France.

A three-judge bench delivered two separate but unanimous verdicts rejecting the objections raised by the Centre that those documents were not admissible as evidence under Section 123 of the Indian Evidence Act, and no one can produce them in court without the permission of the department concerned as those documents are also protected under the Official Secrets Act.

The Centre also failed to impress the bench, comprising Chief justice Ranjan Gogoi and Justices S K Kaul and K M Joseph, that the disclosure of those documents was exempted under the Right to Information Act as per Section 8(1)(a) and those who conspired in photocopying the papers committed theft and put national security in jeopardy.

CJI, who wrote the judgement for himself and Justice Kaul, noted that all the three documents were in “public domain” and published by prominent daily The Hindu were “in consonance with the constitutional guarantee of freedom of speech”.

CJI said: “We deem it proper to dismiss the pre- liminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of contents of the 3 documents, admissibility of which, in the judicial decision making process, has been sought to be questioned by the respondents in the review petitions.”

The CJI, who penned the 18-page judgement, said the documents used by former Union ministers Yaswant Sinha and Arun Shourie and lawyer Prashant Bhushan in their plea were published in ‘The Hindu’ in February and one of the papers was also published by ‘The Wire’.

Senior advocate Vikas Singh, who appeared for another petitioner Vineet Dhandha, said the judgment makes it clear that during the hearing of the review petition the bench will look into various issues on the Rafale jet deal including the question of pricing and also selection of Indian offset partner of Dassault.

The two judges also noted no law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to its notice.

“In fact, 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,” the judges said.

The apex court said there is no provision in the Official Secrets Act and no such provision in any other statute has been brought to its notice by which Parliament has vested any power in the executive to restrain publication of documents marked as secret.

Dealing with the submission of Attorney General K K Venugopal, who questioned the manner in which the documents were procured by the petitioners, the apex court referred to its previous judgement.

Justice Joseph, who gave different reasons for concurring with the CJI, said: “The correctness of the contents per se of the documents are not questioned.

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