Setback for Modi govt, SC says ‘stolen’ Rafale documents admissible in the court

The Supreme Court struck down Centre’s claim of privilege on the newly published Rafale papers, setting the stage for the top court to examine these during a review of its earlier ruling that had given a clean chit to the government on Rafale.

“We deem it proper to dismiss the Centre’s plea,” a three-judge bench led by CJI Ranjan Gogoi said. The court will fix a date for the review hearing later.

The government had alleged that these documents widely published in the media had been purloined or stolen and hence were not to be admitted as evidence in the court proceedings.

The petitioners, who sought a review of the court’s clean chit on the ground of errors of fact, urged the court to examine these documents during the review hearing. The petitioners include the likes of activists lawyer Prashant Bhushan and Arun Shourie.

“We are delighted at the unanimous verdict dismissing Centre’s argument on admissibility of documents,” Shourie said on the order.

The backstory

The government in its argument had insisted that the documents on which the case rests were “stolen” and could not be used in a court of law.

The “documents were stolen or purloined by former or current officers in the ministry of defence,” attorney general KK Venugopal had said. “These are privileged documents under the Official Secrets Act (OSA)… These were stolen to be published. An investigation is underway. Criminal action will be taken against those who have published it.”

He first referred to “two newspapers” in this regard and subsquently named The Hindu and ANI, a news agency. A review is a limited exercise in which the same bench that dealt with the case earlier re-examines its ruling in the light of new facts.

Power to examine defence deals

The revelations regarding the pricing and other details of the Rafale deal had damaged national security, the government’s seniormost legal officer had argued. He said the Rafale jets were “urgently” needed to defend the country’s security from Pakistan’s F-16s. “Otherwise, how can we protect the country against F-16s?” he said, referring to heightened border tensions. “Do you know how many of our aircraft can compete with the F-16s?”

Preparations have been underway for the Rafale’s induction for some time.

“Our pilots are already in Dassault for training. The first aircraft will be delivered in September 2019. Two squadrons of Rafale will be delivered in flyaway condition,” he had said. “Superior avionics, missiles are required to defend the country against our apparent enemies in the world.”

Any court intervention in the deal will disrupt that process, he claimed. Venugopal had contested the Supreme Court’s power to examine defence deals, insisting that there is no global precedent for this. He said the CAG report on the deal had been placed in Parliament, which will examine it.

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