Defending Rafale deal, Govt unveils new weapon: Official Secrets Act

Ananthakrishnan G
The petitioners have sought a review of the December 14, 2018 order of the Supreme Court which dismissed all PILs seeking a probe into alleged irregularities in India's Rafale deal with France. (French Army/ECPAD via AP)

Claiming in the Supreme Court that documents related to the Rafale fighter deal were "stolen" from the Ministry of Defence, the government Wednesday threatened to invoke the Official Secrets Act and initiate "criminal action" against two publications which ran reports on the basis of these documents, and a lawyer.

Attorney General K K Venugopal, who made this submission before a three-judge bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph, initially did not name the publications but later said "documents in the possession of The Hindu and ANI are stolen documents".

The lawyer he mentioned was an apparent reference to Advocate Prashant Bhushan who was arguing a review petition on behalf of himself and former Union Ministers Yashwant Sinha and Arun Shourie.

Editorial | Stealing the facts

The petitioners have sought a review of the December 14, 2018 order of the Supreme Court which dismissed all PILs seeking a probe into alleged irregularities in India's Rafale deal with France. They have also sought perjury charges, saying the Centre suppressed crucial facts when the Supreme Court decided to dismiss the PILs.

Read | Govt hit back when first report came out, not once did it say papers stolen

On February 8, a report in The Hindu, citing a "Defence Ministry note" of November 2015, stated that the Ministry "raised strong objections to 'parallel negotiations' conducted by the Prime Minister's Office (PMO) with the French side" in the Rafale deal. ANI released the same note with additional notings.

Read in Malayalam

Venugopal said a probe into the theft was underway.

N Ram, chairman of The Hindu Group, said nobody would get any information from the newspaper on the confidential sources who provided the documents. "We are fully committed, absolutely committed to protect the confidentiality of our sources… the documents speak for themselves and the stories speak for themselves," he said. When Venugopal told the court that the matter was one involving national security and stolen material could not be relied upon unless the source was established, the bench raised several questions and asked him "suppose a crime like corruption has been committed, can you seek shelter under national security to suppress it?"

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Justice Joseph said "stolen material can be relied upon provided it's relevant" and "what I am trying to say is you cannot have a general proposition" that it cannot be used.

Proceedings began with Bhushan saying that the court has not addressed the main prayer in their original petition which was to order a court-monitored probe into the Rafale deal.

At this, Venugopal said he had a preliminary objection: that the documents sought to be relied upon by Bhushan "were stolen from the Defence Ministry" allegedly "by present or former employees… we don't know (by whom)" and a probe was on.

He said the government will initiate "criminal action" since the matter concerns sensitive Defence purchases and is covered by the Official Secrets Act.

Told that the document was published on February 8, CJI Gogoi asked what had the government done until now. He told Venugopal to apprise the bench when it assembled post-lunch. When proceedings resumed, the Attorney General submitted that an internal probe was conducted regarding the alleged theft but no FIR was filed since it would then have had to be filed against the lawyer using it too.

He said the "note filed cannot be the subject of judicial process" and that being a matter of national security, it was outside the purview or the Right to Information Act. He submitted that in the government "views and counter views are expressed" in such matters and "then there may be a third view". So "the thought process can't be taken as final decision", he said, adding that only the final decision can be subject to judicial review.

Venugopal pointed out that The Hindu, on the first day of publication, had not published the full document which had the Defence Minister's noting that it was an overreaction. But the submission that stolen documents cannot be relied upon by the court did not go down well with the bench. Justice Joseph asked Venugopal "suppose there is a corruption complaint, are you going to shelve it under national security?… Is there liberty to commit corruption?"

The AG said the matter being one of national security was beyond judicial scrutiny and asked "do we have to come to court and explain every time a war is declared". He said the question was whether the court should entertain if a petitioner came to it with unclean hands.

At this, Justice Joseph said: "You have to state the law… you can't… say court can't reply on the evidence because it was obtained illegally. That's the law in the USA, not India." He observed that "stolen material can be relied upon provided it's relevant" and "what I am trying to say is you cannot have a general proposition" that it cannot be used.

The AG replied that it can be relied upon provided the petitioner crosses a threshold which was establishing the source. Intervening, the CJI asked what if a person who cannot prove his innocence steals a document which helps him prove that he is not guilty and uses it. The AG repeated that it can be used if the source is established and if it is relevant.

Justice Joseph then referred to the Bofors case and told the AG, "there were allegations of corruption in Bofors" and asked whether the same standards would have applied to it also. The judge said that in India, "we have an open system".

To this, the AG replied: "In no other country Defence is a matter of judicial review. There are courts in other countries also. Your Lordships are looking at this as if it's some administrative law issue."

"… when it comes to the purchases of the planes which are essential to our survival, then courts say can we look into the documents also because there are some allegations of wrongdoing, I say no… whatever court says will be used politically… Due to the high respect that this court commands, any word from the court will be used for the purpose of destabilising India," he said, and added "so please exercise restraint".

"Look at the damage which is done," the AG said, tracing the history of the deal. Venugopal said while other countries had F-16s, India was still left with MiG-21s and this underlined the urgent need for acquiring the Rafale. "Do your Lordships know how many aircraft we have in our arsenal to take on the F-16s?" he asked.

"The MiG-21s," Justice Joseph replied. "Yes, of 1960s vintage," remarked the AG, adding "nevertheless we performed beautifully" - this was a reference to the MiG-21 flown by Wing Commander Abhinandan Varthaman who took on Pakistani F-16s in a dogfight on February 27.

Venugopal said "what we are being told is there are flaws in it (Rafale)", and that there was an attempt to get the court to order a CBI inquiry so that other counties will know that if they plan to sell to India, they will have to face hurdles in the form of Parliament and the court.

Bhushan criticised the CAG report on the Rafale purchase saying it was for the first time that pricing details have been redacted from the report. On the source of the documents he had submitted to the court, he said "bulk of them were from publications like The Hindu, Caravan and The Indian Express". Hearing in the matter will resume on March 14.