French Navy Rafale fighter jets are seen aboard the upgraded "Charles de Gaulle" aircraft carrier off the coast of Toulon, France, November 14, 2018. Credit: Reuters/Christophe Simon
New Delhi: The Narendra Modi government has informed the Supreme Court that documents linked to the controversial Rafale fighter jet deal were stolen and that newspapers that published ministry files may have violated the Official Secrets Act.
A three-judge bench of the Supreme Court comprising CJI Ranjan Gogoi, Justice S.K. Kaul and Justice K.M. Joseph assembled on Wednesday morning to hear a review petition in the Rafale matter.
In December 2018, the Supreme Court had turned down petitions seeking an investigation into the aircraft deal, saying that there was no “ocassion to really doubt” the government’s decision-making process. After the judgement, controversies arose over a number of facts presented in the judgement as well as new developments reported by multiple media publications including The Wire.
Consequently, a review petition was filed, the hearings for which began on Wednesday.
Senior advocate and review petitioner Prashant Bhushan started by noting that the apex court had unknowingly relied on “erroneous facts” while delivering its earlier judgement and that new documents, in the form of news reports published in The Hindu, should now be taken on record.
It was at this point that Attorney General K.K. Venugopal rose and submitted that documents relied by the petitioners and The Hindu were stolen from the defence ministry and that the Centre was contemplating a probe under the Official Secrets Act.
“I have an objection! These documents were stolen from the Defence Ministry by some former employee and the investigation is ongoing. These documents are marked secret and were published by two newspapers…this is an offence under the Official Secrets Act. We would be launching prosecution”, Venugopal was quoted as saying by LiveLaw.
According to a Bar & Bench report, the attorney general noted that action may be taken against two newspapers which published documents regarding the Rafale negotiations and its pricing, and that action was also warranted against the senior counsel.
In response to this, CJI Gogoi noted that the first publication of the Rafale file notings was done on February 8.
“What have you done till now? You say the papers were stolen, what have you done?” the CJI asked. To which the attorney general responded that he will find out.
How important is a document’s source?
After breaking for lunch, the back-and-forth between Venugopal and the bench continued, centering around the admissibility of documents that had been obtained through illegal means.
In a hypothetical example, CJI Gogoi highlighted that if an accused stole a document to prove his innocence, it should be admitted in court.
“An accused is having difficulty in proving his innocence. He steals a document and shows it to judge. The document clearly shows he is innocent. Should the judge not admit the document,” the Chief Justice asked.
The attorney general, however, replied that once the document is a “subject matter of criminality”, the court should “not look into it”.
Venugopal also added that documents used by both The Hindu and news agency ANI were “stolen documents” and that a report would be submitted tomorrow on what action was being taken by the government following the leaks.
Next hearing on March 14
After Bhushan resumed arguments, the Supreme Court indicated that he should argue for the moment on the basis that the stolen documents cannot be used. The bench noted that it will decide later on whether the review petition can be argued with those documents.
“If we accept AG’s arguments, we reject these documents and hear your review petition minus these documents. And If we reject AG’s submissions, we will then see how these documents are relevant to decide the review petitions,” CJI Gogoi told Bhushan.
The lawyer then told the court that most of the documents in the review petition have their sources clearly marked.
After former BJP minister Arun Shourie made arguments to the effect that if the petitioners had documents to show the government’s facts were wrong, they had a right to place those papers before the court.
With time running out, the bench then adjourned the next hearing to March 14.
When a separate lawyer made a plea for a hearing on teacher’s recruitment, the CJI responded: “The country needs fighter jets, the country needs teachers, the country needs so many things. But we have limited time.”—The Wire