A Rafale fighter jet, manufactured by Dassault Aviation SA, performs maneuvers during an aerobatic flying display at the 53rd International Paris Air Show at Le Bourget, in Paris, France. (Photographer: Chris Ratcliffe/Bloomberg)
7 years ago
Mar 14, 2019
Catch live updates from the Supreme Court hearing of 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.
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.
Section 123, RTI Act: “Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”
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?
Section 22 of the RTI Act provides that the provisions of the Actshall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act.
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.
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.
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?”
“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”.
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,”
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.
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.
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.
