Rafale hearing: In Supreme Court, Centre claims State privilege over deal documents, says no one can produce them without permission

After the Supreme Court resumed hearing review petitions on the controversial Rafale fighter jet deal, Attorney General KK Venugopal on Thursday urged the apex court to direct the removal of the “leaked” pages from the court records claiming State “privilege” over these documents. According to ANI, the bench — comprising Chief Justice Ranjan Gogoi, and justices SK Kaul and KM Joseph — asked the attorney-general what privilege did he claim, asserting that the documents had already been produced in court. To this, Venugopal replied saying, “They have produced it after stealing it. State documents can’t be published without explicit permission.” Venugopal, appearing for the Centre, referred to Section 123 of the Evidence Act and provisions of RTI Act to buttress his claim. He also said that the security of the State “supersedes everything”, and that defence acquisitions were related to national security. [caption id=“attachment_6075511” align=“alignleft” width=“380”]  File image of the Supreme Court of India. PTI[/caption] The bench referred to the RTI Act and said that it has an overriding effect on the Official Secrets Act as per Section 22 and Section 24 of the RTI Act. “Even intelligence and security establishments are bound to give information about corruption and human rights violations,” it said. Live Law reported that Justice KM Joseph passed a circular to the attorney-general, which showed that the government itself had asserted transparency in inter-departmental comments. The circular was an office memorandum by Department of Personnel and Training, which stated that “file notings” are covered by the RTI Act. Appearing for the review petitioners, senior advocate Prashant Bhushan termed the objections taken by the Centre as ‘mala fide’ and not meant to protect the country’s defence interests. He further said that each of the documents was already available in the public domain. “How can the court not take cognisance when the documents are already in public domain?” he argued.

"The government itself has leaked information to "friendly media" such as file notings of @DefenceMinIndia", @pbhushan1 points out #Rafale #RafaleReview

— Live Law (@LiveLawIndia) March 14, 2019

Venugopal also made a submission saying that the government has made a mistake in filing the CAG report and the first three pages of the CAG report on the deal were missing and need to be brought on record. The court reserved its order on preliminary issue of whether secret documents can be used for admission.

#NewsAlert -- Leaked papers aren't entitled to be made available even under RTI or under freedom to know: AG tells SC | #RafaleFilesStolen@AnushaSoni23 with more details. pic.twitter.com/Fz5DVCas8R

— News18 (@CNNnews18) March 14, 2019

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On Wednesday, an affidavit filed by the defence ministry said 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 country’s security in jeopardy by leaking them. 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. The affidavit assumes significance as Venugopal, on the 6 March hearing, had alleged that the review petition was based on the documents which were stolen from the ministry. Two days later, Venugopal claimed the Rafale documents were not stolen from the defence ministry and he had meant in his submission before the top court that the petitioners in their application had used “photocopies of the original” papers, deemed secret by the government. The ministry said even though the Centre maintains secrecy, Sinha, Shourie and Bhushan, by annexing the stolen documents in the petition, “are guilty of leakage of sensitive information, which offends the terms of the agreements”. The government, during the 6 March hearing, had also threatened The Hindu newspaper with the Official Secrets Act for publishing articles based on these documents and also contempt of court. The Hindu publishing group chairman N Ram later said that nobody would get any informatio n from the newspaper on the confidential sources who provided the documents. Ram had said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. With inputs from ANI