Advocate Prashant Bhushan, along with former Union ministers Yashwant Sinha, and Arun Shourie had earlier filed a joint petition seeking the court’s permission to submit detailed news reports pointing out violations of the Defence Procurement Procedure (DPP).
The news reports, published in The Hindu on February 8 and news agency ANI, show file notings and extracts from MoD, indicating that the Indian negotiating team as well as MoD and the law ministry had opposed the purchase of 36 Rafale jets. The report also seems to indicate that the government overlooked the procurement process.
A three-judge bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph is hearing the case.
March 6, 2019.
The nation witnessed an unprecedented turn in the Rafale hearing in the Supreme Court. Attorney General KK Venugopal opposed the review petitions filed in the Rafale deal case.
The Central government submitted in the Supreme Court :
- That files relating to the Rafale deal negotiations were “stolen from the Ministry of Defence”.
- That media reports citing details of the pricing and the decision making process “violate Official Secrets Act (OSA)”,
- That since the allegations are based on “stolen documents”, it cannot be used as evidence,
- That it is the Parliament, not the SC which could raise questions regarding the pricing. It’s a question of secrecy and security. Court cannot go into this issue at all. Any observation by the court will be used by the Opposition to destabilise the government and therefore court should not get into Rafale issue,
- That a CAG report on the Rafale deal has already been tabled in the Parliament and the “Parliament has its own machinery” to deal with the controversy.
Chief Justice of India (CJI) Ranjan Gogoi asked,”The report was published on February 8. What have you done about it?”
The government then said that preliminary investigations were being conducted and argued that the newspapers should reveal how they got the documents. The Hindu, ANI and Prashant Bhushan should reveal their sources.
Attorney General KK Venugopal, however, could not explain the delay by the Centre in investigating the alleged “leak.” The AG told the court that preliminary investigation on the file notings had started but no FIRs have been registered so far.
Appearing for the petitioners, Advocate Prashant Bhushan opposed the Centre’s arguments. He pointed out that confidential sources were needed to be protected as whistle blowers because they were “acting in public interest”.
He also used the high level bribery case against former director Ranjit Sinha and the coal block allocation case as references wherein similar “leaked files” had been made the basis of investigation.
The AG in his submissions also alleged that a particular newspaper was “attempting to influence the mind of the court.” It released an article on the financial implication of the Rafale deal, on the day of the hearing before the court.
“The word ‘secret’ is there at the top of the page. Petition has attached the page in the file and blocked out the word ‘secret’– this is a violation of the official secrets act,” argued the AG.
He added that OSA could be imposed and FIRs registered against the publishers of two newspapers and one news agency.
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“The OSA says that any person who accesses secret documents that may affect sovereignty and integrity of India is guilty,” said the AG. Justice KM Joseph, however, didn’t seem to be convinced by this argument of the AG.
The court said, “The issue is that the law of the country has been broken by corrupt practice. The matter is with regard to the corruption. You are saying the corruption cannot be looked into because the evidence is from an illegal source. That’s not the law in India Even stolen evidence can be looked into, provided it is relevant and it’s authenticity is proved.”
Justice Joseph said “stolen material can be relied upon provided it’s relevant” and “what I am trying to say is you cannot have a general proposition” that it cannot be used.
The petitioners argued : “We want to submit the media reports to answer a question raised by the court on the validity of the procurement process”.
“We worked to get the documents to show that the facts given by the government are point by point false. They did not disclose to you that the clauses were retrospectively deleted and altered. Anti corruption clauses were deleted — all of this was not disclosed to the court. All of this was suppressed by the government,” said Arun Shourie.
Bhushan said that the allegation of violation of the OSA was “an attempt to intimidate the petitioners and influence the outcome of the case.”
He argued that the government lawyer should face contempt of court charges for trying to prevent the petitioner from filing relevant evidence by “intimidation as threat of prosecution.”
Next Hearing: March 14
Factors weighing :
Whistle blowers, public interest, Official Secrets Act (OSA), corrupt practices, can SC intervene in Parliamentary actions, etc….
Hearings shall continue. The moot point shall remain –
“Whether the news reports based on the “stolen papers” can be admitted as evidence before the bench”.
Is a matter of national security beyond judicial scrutiny?
Can the government invoke the Official Secrets Act and initiate “criminal action” against two publications which ran reports on the basis of these documents, and a lawyer?
Do we have to come to court and explain every time a war is declared?
Should the court entertain if a petitioner came to it with unclean hands?
A more important point persists:
“Whether the decision will come before the LS elections”.