A Rafale fighter jet, manufactured by Dassault Aviation SA, performs an aerial display on the second day of the 14th Dubai Air Show at Dubai World Central (DWC) in Dubai, United Arab Emirates. (Photographer: Jasper Juinen/Bloomberg)

Rafale Leaked Papers Case: Supreme Court Reserves Verdict

The Supreme Court today reserved its order on the government's objection to allowing the use of new documents released as parts of media reports during the hearing of the review petitions in the Rafale case.

Attorney General KK Venugopal told the top court that the petitioners weren't authorised to access these documents and the defence of freedom of speech and expression doesn't apply in such situations. The attorney general cited Section 123 of the Evidence Act to support his arguments.

The section states: “No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of the state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”

Even the Right to Information Act does not provide protection in such situations, the attorney general said.

Appearing for the petitioners, advocate Prashant Bhushan argued that the test for allowing the documents, as established by previous court’s judgments, is the test of public interest.

Bhushan said the government's defence against allowing the documents to be part of court proceedings is “malafide” and not with the intention to prevent any harm to national security. Bhushan argued that Section 123 relates to only unpublished documents whereas in this case the documents are already in public domain. ''To say that documents which are already in public domain, if taken on record by the court will lead to harm is an untenable argument'.”

“The government is unable to tell when it became aware of unauthorised access to the documents. From time to time, the government itself has leaked what it calls sensitive documents to friendly media,” he said.

Bhushan also questioned the Comptroller and Auditor General of India’s report which had redacted information relating to the pricing details while putting out the report in public. He asked the government how it was aware in advance that the pricing details would be redacted.

To this, the attorney general said it was the government which had asked for the pricing details to be redacted as it was part of the agreement between the Governments of India and France to not release the pricing details.

Arun Shourie, who is also one of the petitioners in the case, argued that the attorney general by saying the documents were stolen or later saying photocopied has established the authenticity of the documents.

The case is being heard by a bench comprising Chief Justice of India Justice Ranjan Gogoi, Justice SK Kaul and Justice KM Joseph.