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

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 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.

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• To make a claim of privilege, you can only make them for unpublished documents.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?

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.”

Attorney General of India KK Venugopal has begun presenting his arguments to the Supreme Court regarding the “leaked” Rafale documents.

The prilvlige 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.

The government on Wednesday told the Supreme Court that documents filed by the petitioners seeking review of its Rafale deal verdict are "sensitive to national security" and those who conspired in photocopying the papers have committed theft and put the security in jeopardy by leaking them.

The Ministry of Defence said an internal enquiry commenced on Feb. 28 and is currently in progress over the leakage of sensitive documents and it is of utmost concern to find out where the leakage took place.

The affidavit filed by the ministry said documents attached by the petitioners -- former Union ministers Yashwant Sinha and Arun Shourie as also activist advocate Prashant Bhushan -- relate to war capacity of combat aircraft and have been widely circulated, available to the country's enemy and adversaries.

Here are the highlights of what the government said to the Supreme Court:

• The documents relied upon by the petitioners in the review petition are privileged documents and must not be taken on record by the court.
• Documents submitted by the petitioners are sensitive to national security which relates to the war capacity of the combat aircraft.
• Petitioners are using documents which were marked 'secret' with the intention to present a selective and incomplete picture of internal secret deliberations on a matter relating to National Security and Defence.
• Petitioners and Prashant Bhushan are guilty of leakage of sensitive information.
• Petitioners have no authority to present the documents before the court without the permission of the Government.

Read More.

Rafale hearing has concluded for the day. The Supreme Court will resume hearing on March 14 at 3 p.m.

Arun Shourie said that the argumentmade by the Attorney General that the documents can be read by the court but not by the country's people is an "extreme proposition".

Shourie said

• We are all here to assist the court with facts because it is a matter involving national security.
• The facts presented before you must be the truth and the whole truth.
• The facts placed before you by the government were at your order.
• Is it not our duty to bring to your attention that you have been misled?
• The government does not disclose to you that the sovereign guarantee clause was deleted, anti-corruption clauses were removed?
• And all that was done after objections from the ministry officials itself. All that is not disclosed to you.

Bhushan said that the government has itself disclosed the price of the Rafale aircraft in the Parliament. They have also disclosed the price of upgrade the Mirage aircraft, he said.

Bhushan said

• It is the first time in the history of Comptroller and Auditor General that pricing has been redacted and the government knew it will be redacted.
• At the insistence of the government, the CAG redacted the price of the aircraft.

CJI Gogoi said that if the bench accepts the AG’s argument, they will dismiss the petition. If they do not accept, then they will look at the documents. The CJI then requested arguments based on the objections of the AG.

Bhushan started by responding to submissions made by the Attorney General on the admissibility of the documents in question. He cited the Coal scam and the 2G scam cases saying he was allowed to visit the diary of former CBI chief Ranjit Sinha for the same.

• Bhushan said he got access to the visiting diary of Ranjit Sinha and approached the 2G court which was hearing the case. The court asked him to reveal the source. The Centre for Public Interest Litigation, he said, passed a resolution that we cannot disclose it and filed the affidavit. An order was passed by court that we don’t have to reveal the source. That diary became the source of investigations later, Bhushan explained.
• In Coal scam, Bhushan said he got access to certain file nothigs and same objection was raised as raised by the AG today.
• In Rafale case, Bhushan mentioned that documents were published both by the Hindu and ANI.

The Attorney General KK Venugopal said that the Rafale matter is one through which the opposition is trying to destablise the government. "In this limited area concerning defence of frontiers, would it not be appropriate for the court to exercise restraint?”

The Attorney General said that illegally obtained evidence can't be relied upon. The judges quiz him on his stance.

Chief Justice To Attorney General

• If the manner in which a document has been obtained is questionable, should the court not look into it?

Attorney General To Chief Justice

• The first thing to be determined is the source. Second is the relevance. That is the law in India.

Chief Justice To Attorney General

• Show us the authority for the proposition that the source of such information needs to be provided. The CJI added that regardless of the precedents cited by the Attorney General, they have to interpret the law.

Attorney General says the source is important

Justice Kaul To Attorney General

• “It is one thing to say that we should look at these documents with suspicion. But to say we can't even look at the documents may not be a correct submission.”
• Some issues will have to be heard if they "shock the conscience of the court”.

The Attorney General cited a 2004 Supreme Court judgment by Justice Arijit Pasayat to say that if a petition relies on illegally obtained evidence, the petition is liable to be dismissed.

• Publication of the Defence Ministry notes on the Rafale deal violates Sections 3 (Spying) and Section 5 (Wrongful communication of Confidential Information) of the Official Secrets Act
• Placing this information before the court by the petitioners is a criminal act.

The Chief Justice told the Attorney General to stick to whether or not the review petition can't be heard.

Justice KM Joseph also questioned the Attorney General

• If a grave crime had been committed, of corruption, are you really going to hide behind national security?
• Illegally obtained evidence can still be admissible if it is relevant.
• Can make a limited objection on the grounds that the source of the information needs to be disclosed, not that it can't be used.

Attorney General resumed his arguments countered the point raised by Bhushan that Official Secrets Act is overridden by the Right To Information Act.

Even under the RTI Act, information that affects security and sovereignty of the country is not disclosed, he said.

Venugopal also read out a note published by The Hindu and said that the document was marked as secret, under the Official Secrets Act.

The petitioners are totally oblivious to the effects of a Central Bureau of Investigation inquiry into the Rafale case, KK Venugopal added.

Here are the other highlights from the Attorney General’s arguments:

• Defence Ministry note that alleged PMO interference in the deal was meant to be kept secret.
• The word "Secret" on the top of the page was cropped from The Hindu's article.
• This article has been referred to in the review petition as evidence.
• Look at the damage done by publishing this information - talks about the need for aircraft to combat F-16s, says these objections cause delay

Meanwhile, Prashant Bhushan alleged that the Attorney General’s comments before lunch amounted to an attempt to intimidate the petitioners. “It amounts to criminal contempt,”

Chief Justice of India Ranjan Gogoi informed Aam Aadmi Party Rajya Sabha MP Sanjay Singh's lawyer, Sanjay Hegde, that the bench will not hear Singh's review petition because Singh had made derogatory remarks about the court regarding Rafale and Alok Verma cases.

CJI to Sanjay Singh's lawyer:

• Which political party does Singh belong to?
• What more we are going to do with him, we will decide. We are certainly going to do something with him.
• He has made certain statements related to the Rafale case.

The Court asked the Attorney General on what action has been taken by the government since documents were found to be stolen from the Defence Ministry.

Venugopal replied that action was being contemplated, including against The Hindu newspaper.

The Attorney General added that The Hindu report published this morning was an attempt to influence the mind of the Court and that it constitutes contempt.

Attorney General KK Venugopal objected to The Hindu's reportage on the Rafale deal, saying that the stories were based on documents stolen from the Ministry of Defence, which were protected by the Official Secrets Act.

The Attorney General suggested that those who have put out the documents in public domain are guilty of criminal offenses, and added that an investigation is underway into the matter.

Venugopal said that his preliminary objection was that the petitioners were relying on these stolen documents, and added that the entire petition has to be dismissed right at the outset.

A three-judge bench of the Supreme Court has started hearing the review petitions seeking review of its December 2018 verdict that dismissed pleas challenging the deal between India and France for the procurement of 36 Rafale fighter jets.

Right at the outset, Chief Justice Ranjan Gogoi said that the bench won’t look into supplementary affidavits.

A day after the December verdict, the Centre had moved the apex court seeking correction in the judgment where a reference was made about the Comptroller and Auditor General report and Parliament's Public Accounts Committee, saying "misinterpretation" of its note has "resulted in a controversy in the public domain".

The apex court on Feb. 21 had said that it would consider listing of the plea seeking review of its verdict in the Rafale case.

On Dec. 14 last year, the apex court had dismissed a clutch of PILs, including the one filed by former Union ministers Yashwant Sinha and Arun Shourie, and lawyer Prashant Bhushan, saying there was "no occasion to doubt" the decision-making process of the Centre in the procurement of 36 Rafale jets from France.

The Supreme Court agreed to hear in open court the petitions seeking review of its December 2018 verdict that dismissed pleas challenging the deal between India and France for the procurement of 36 Rafale fighter jets.

A bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph, in its chamber hearing, allowed the prayer of former Union ministers Yashwant Sinha and Arun Shourie and activist lawyer Prashant Bhushan that the review pleas be heard in open court.

"The prayer for open Court hearing is allowed", said the bench which also considered the review petition filed by AAP MP Sanjay Singh through lawyer Dheeraj Singh.

Besides two review petitions, the top court is also seized of some applications including the one filed by Sinha, Shourie and Bhushan seeking perjury prosecution of government officials for allegedly misleading the court on the issue of pricing and procurement process.