The Supreme Court on Thursday reserved its order on the Centre’s claim that it had privilege over documents produced by petitioners seeking review of its judgment in the Rafale case.
Seeking removal of the "leaked" files submitted by the review petitioners from the records in the case, Attorney General KK Venugopal told the CJI Ranjan Gogoi-led three-judge bench that state documents could not be published without explicit permission as the government had privilege over them.
Referring to Section 123 of Evidence Act and provisions of RTI, Venugopal said, "Under the provision of Evidence Act, no one can produce privileged documents in court without permission of department concerned."
Hearing petitions seeking review of its December 14, 2018 judgment in Rafale deal case, the bench, also comprising Justices SK Kaul and KM Joseph, said RTI Act had an overriding effect on Official Secrets Act.
"What privilege do you (Attorney General) claim? They (petitioners) have already produced them in court. As per Section 22 and Section 24 of RTI Act ‘even intelligence and security establishments bound to give information about corruption and human rights violations," the bench said.
To this, the Attorney General argued that the security of the state superseded everything. "They (petitioners) have produced it after stealing it. State documents can’t be published without explicit permission," Venugopal said.
The petitioners, former Union Ministers Yashwant Sinha, Arun Shourie and advocate Prashant Bhushan, have sought a review of the apex court’s verdict that dismissed all PILs seeking a probe into alleged irregularities in India's Rafale deal with France.
The apex court, however, made it clear that it would first decide on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case. "Only after we decide the preliminary objection raised by the Centre, we will go into the facts of the case," said the bench.
Rafale deal files in public domain: Prashant Bhushan
Advocate Prashant Bhushan opposed the AG’s submission and said Rafale deal documents have been published and were already in public domain. "Each of these documents is already available in public domain. How can the court not take cognizance when the documents are already in public domain?" he said.
Bhushan said provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies. "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," Bhushan said.
In the last hearing, the Attorney General claimed in the Supreme Court that documents related to the Rafale fighter deal were "stolen" from the Ministry of Defence, and 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.
Venugopal initially did not name the publications but towards the end of the hearing said: "documents in the possession of The Hindu and ANI are stolen documents". He even said a probe into the theft was underway.
However, a day later Venugopal did a U-turn and claimed that the petitioners had annexed three documents which were photocopies of the original.