SC allows leaked documents to be relied in Rafale case

Delivering a unanimous verdict, the Supreme Court has dismissed the Centre’s preliminary objections seeking review of earlier judgment giving a clean chit to the Union government in the Rafale deal, reports Tehelka Bureau

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The Supreme Court has allowed leaked documents to be relied upon by petitioners seeking review of its Rafale judgement and dismissed the government’s preliminary objections claiming “privilege” over them.

The Centre had submitted that privilege documents were procured by petitioners in an illegal way and used to support their review petitions against the December 14, 2018 judgement of the apex court dismissing all pleas challenging procurement of 36 Rafale fighter jets from France.

“We dismiss the preliminary objection raised by Union of India questioning the maintainability of the review petition,” a bench comprising Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph said.

The apex court said it will go ahead with the hearing on the review petition on the basis of new documents referred by petitioners.

The CJI pronounced the verdict on his behalf and for Justice S K Kaul. The second concurrent judgment was pronounced by Justice K M Joseph, who said he agreed with the conclusion of the judgment written by the CJI.

The chief justice said Justice Joseph agreed with the judgment delivered by him but gave different reasoning.

The judgment makes it clear that during the hearing of the review petition the bench will look into not only the question of pricing of the jet but also selection of Indian offset partner of Dassault which manufactures Rafale.

The top court said review petitions against its December 14 verdict dismissing all petitions against procurement of Rafale jets will be decided on merits.

The apex court said it will fix a date for hearing review petitions.

Former union minister Arun Shourie, who is one of the review petitioners, said he was delighted by the unanimous verdict.

“We are delighted it is an unanimous verdict dismissing Central government’s peculiar argument on admissibility of documents. Centre’s argument meant that no wrong can be done in the defence deal,” Shourie said. “Our argument was that because the documents relate to defence you must examine them. You asked for this evidence and we have provided it. So the court has accepted our pleas and rejected the arguments of the government.”

The other two petitioners are former union minister Yashwant Sinha and activist advocate Prashant Bhushan.

On March 14, the apex court had reserved verdict on the preliminary objections raised by the Centre on admissibility of privileged documents annexed by Sinha, Shourie and Bhushan in their review petition.

Classified documents were sourced by the media over the Rafale deal. Citing internal reports of the Defence Ministry, the Hindu had reported that the Defence Ministry had objected to parallel negotiations by the government.

The Centre had claimed privilege over documents pertaining to the Rafale fighter jet deal with France and said those documents cannot be considered in evidence as per Section 123 of the Indian Evidence Act.

The Centre had contended that no one can produce them in the court without the permission of the department concerned as those documents are also protected under the Official Secrets Act and their disclosure is exempted under the Right to Information Act as per Section 8(1)(a).

A three-judge bench headed by Chief Justice Ranjan Gogoi had on December 14 dismissed all Public Interest Litigations (PILs) against the deal between India and France for procurement of 36 Rafale fighter jets, saying there was no occasion to “really doubt the decision making process” warranting setting aside of the contract.

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

The Congress hailed the Supreme Court’s decision, saying skeletons in the “scam” are tumbling out and now there is “no official secrets act” to hide behind for the Modi government. “Modiji, you can run and lie as much as you want but sooner or later the truth comes out. The skeletons in Rafale scam are tumbling out one by one. And now there is ‘no official secrets act’ to hide behind,” Congress’ chief spokesperson Randeep Surjewala said.

“SC has upheld a time honoured legal principle; A rattled Modiji had threatened to invoke Official Secrets Act against independent journalists for exposing his corruption on Rafale.Don’t worry Modiji, an investigation is going to take place now, whether you like it or not,” he said in a series of tweets.

The Left parties also praised the decision, alleging that Modi government was compromising on national security. Continuing his attack on the ruling party, CPI(M) General Secretary Sitaram Yechury said that through the Rafale fighter jet deal with France, the government “promoted cronyism”.

“Modi and his govt have compromised national security for corruption and cronyism in an important defence deal. They tried to evade accountability, denied a JPC, hid price from CAG, tried to first mislead, then stall any hearing in Supreme Court. Important that culprits are booked,” he tweeted.

“Modi and his minions have falsely claimed that they have a ‘clean chit’ in the Rafale scam. But the proofs have come tumbling out one after another. It has been the most corrupt and most compromised govt in India’s history. Now is the time to throw it out,” he said.

CPI National Secretary, Atul Kumar Anjaan said the Supreme Court’s decision has completely “exposed” the Modi government. “The Modi government has been exposed layer by layer in the Rafale scam. “The SC has rejected the claims made by the Centre that the documents related to the deal had been stolen. Now, it is clear that the Modi government has done some scam in the Rafale deal,” he said.

On December 14, the Supreme Court had dismissed petitions by several individuals who had demanded a court-monitored probe into the Rafale deal.

On March 14, the apex court had reserved verdict on the preliminary objections raised by the Centre on admissibility of privileged documents annexed by former Union ministers Yashwant Sinha and Arun Shourie and also activist lawyer Prashant Bhushan in their review petition against the top court’s December 14 judgement that dismissed all petitions against the Rafale jet deal.

The Centre had claimed privilege over documents pertaining to the Rafale fighter jet deal with France and said those documents cannot be considered in evidence as per Section 123 of the Indian Evidence Act.

Attorney General KK Venugopal, appearing for the Centre had contended that no one can produce them in the court without the permission of the department concerned as those documents are also protected under the Official Secrets Act and their disclosure is exempted under the Right to Information Act as per Section 8(1)(a).

Prashant Bhushan had contended that the Centre’s objections were “mala fide and totally untenable arguments”.

The top court had further noted that according to the AG’s submissions “there are three Rafale documents whose publication comes under Official Secrets Act, 1923. These documents were unauthorisedly published. You claim privilege under section 123 of Evidence Act. You want us to adjudicate and strike down the review on this basis”.

Prashant Bhushan had submitted a note countering the preliminary objections raised by the centre on maintainability of the review petitions, stating that “preliminary objections are mala fide and totally untenable arguments”.

He had said government cannot claim privilege over the documents which are already published and is in public domain.

Prashant Bhushan had said that Section 123 Indian Evidence Act only protected “unpublished documents”.

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