Rafale Review Petition: Privileged Documents Can’t Be Allowed As Evidence, Says Attorney General
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Rafale Review Petition: Privileged Documents Can’t Be Allowed As Evidence, Says Attorney General

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The Supreme Court Bench led by Chief Justice of India Ranjan Gogoi and Justices SK Kaul and KM Joseph heard arguments from both Attorney General of India KK Venugopal and activist advocate Prashant Bhushan today.

The Attorney General said that the “privileged” documents have been produced through theft, he said in court today. “The right to freedom of speech cannot be invoked in such cases,” he added, arguing that the documents in question cannot be used as evidence.

In response to this, Prashant Bhushan said that the documents had been on a public domain for a long time and were procured from there itself. The objection itself is made in bad faith, he said, and is not to prevent any harm to national security.

Justice KM Joseph, in response to the AG’s argument said that the Right To Information Act has an overriding effect on Official Secrets Act due to Section 22 of the Act. “When parliament passed RTI, it was revolutionary. Let us no go back,” he said.

Hearing concludes. Supreme Court reserves order.

It Was A Government-To-Government Agreement, Says Attorney General

It was a government-to-government agreement where we could not have revealed the details, the Attorney general said in response to Prashant Bhushan’s argument. “And so we asked the Comptroller and Auditor General of India to redact the information,” he said.

Section 123, RTI Act: “Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.”

Objection Is Malafide, Says Prashant Bhushan

Activist advocate and petitioner Prashant Bhushan argued that the objection made by the Attorney general is in bad faith and that there is no basis for the documents to be privileged since they were taken from a public domain.

Here’s what he said:

  • Attorney General said the documents I am relying upon in my review petitions, they belong to class called defence secrets and such documents that affect the security of the country cannot be relied upon.
  • Secondly, he said the documents were accessed in violation of Official Secrets Act.
  • Thirdly, they said the petitioners have not disclosed the source of the documents.
  • The objection itself is malafide.
  • Intention for this objection is not to prevent any harm to national security.
  • These documents are available in public domain for a long time.
  • 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.
  • To make a claim of privilege, you can only make them for unpublished documents. These documents are already in public domain.
  • The government is unable to tell when it became aware of unauthorised access to the documents and what they have done about it.
  • From time to time, the government itself has leaked what it calls secret documents to friendly media.
  • The government is unable to say when it became aware of unauthorised access to the documents and what they have done about it.
  • There has been no instance thus far of pricing details being redacted from a CAG report.
  • How did the government know in advance that the CAG report will redact pricing information?

Security Of State Supersede Everything Else, Says Justice KM Joseph

Justice KM Joseph - part of the Supreme Court bench which includes Chief Justice Ranjan Gogoi and Justice SK Kaul - said that the Right To Information Act has an overriding effect on Official Secrets Act due to Section 22 of the Act.

Security of the state supersede everything else, he said. “When parliament passed RTI, it was revolutionary. Let us no go back.”

Section 22 of the RTI Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act.
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