Rafale plea: Supreme Court to first settle row over documents
A government affidavit filed on Wednesday argued that the petitioners relied on photocopies of confidential documents that could jeopardise national security and impair India’s relations with other countries.Updated:
Information relating to alleged corruption and human rights violations cannot be deemed to be privileged or protected, the Supreme Court observed on Thursday, responding to the government’s request that the top court not consider secret documents that form part of petitions seeking a review of its own December judgment dismissing pleas for a probe of the Rs 59,000 crore Rafale jet fighter deal.
A government affidavit filed on Wednesday argued that the petitioners relied on photocopies of confidential documents that could jeopardise national security and impair India’s relations with other countries. It also claimed privilege with respect to the documents under the Evidence Act, saying the court cannot take cognisance of the papers.
On the government’s stand that the secret documents are protected under the Right to Information (RTI) Act, the Official Secrets Act and Article 19(2) of the Constitution, justice KM Joseph observed: “In cases of corruption and human rights violations, even sensitive organisations have to disclose information under section 24 of the RTI Act.”
“When the parliament passed the RTI Act in 2005, it brought about a complete revolution; let us not go back to what it was before the law came into existence,” justice Joseph remarked. The top court later reserved its order on the government’s preliminary objection to the court.
The court took note of the documents, which include three sets of secret notes, one of them an eight-page dissent note written by three domain experts in the Indian team that negotiated the purchase of 36 Rafale fighter planes made by France’s Dassault Aviation.
Appearing for the centre, attorney general KK Venugopal told the Supreme Court that the secret documents presented in the review petitions were privileged information and could be prohibited from being brought into the public domain under the reasonable restriction clause of the Constitution and the RTI Act.
“Article 19(2) of the Constitution imposes restriction on publication of documents that affect the sovereignty, integrity of the country and friendly relations with foreign states,” the government’s top law officer argued, saying the Official Secrets Act disallowed defence ministry documents from being admitted in the Supreme Court.
A three-judge bench headed by Chief Justice of India (CJI) Ranjan Gogoi and comprising justices Joseph and Sanjay Kishan Kaul is hearing a petition against the top court’s December verdict, which found that there was “no occasion to doubt” the decision-making process behind the 2016 purchase of Rafale aircraft or the need for the fighter planes.
The petition by former Union ministers Arun Shourie and Yashwant Sinha and advocate Prashant Bhushan said information that surfaced after the verdict proved that the National Democratic Alliance (NDA) government “misled” the court on various counts.
Justice Joseph told Venugopal that the RTI Act has an overriding effect on the Official Secrets Act. He pointed out that “public interest outweighs” other factors in cases of corruption and human rights violations. The government is bound to furnish documents in such cases, the Supreme Court judge said.
Petitioner Bhushan said the Centre’s argument was untenable because a Comptroller and Auditor General of India (CAG) report submitted by it last month also dealt with a large number of defence purchases.
“To say that documents given relate to defence purchases and should not be considered by court is totally unsustainable argument,” Bhushan argued.
The Centre argued in its affidavit that the documents presented a “selective and incomplete picture of internal secret deliberations” on a matter relating national security and defence. On March 6, Venugopal had called for dismissing the review petitions, claiming that the petitioners had relied on “stolen” papers acquired from “present or former employees” of the defence ministry. He clarified later that documents had not been stolen but were photocopies of the original papers.
The NDA government’s decision to enter a $8.7 billion government-to-government deal with France to buy 36 Rafale warplanes was announced in April 2015, with an agreement signed a little over a year later. This replaced the previous United Progressive Alliance regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by state-owned Hindustan Aeronautics Ltd.
The deal has become controversial with the opposition, led by the Congress, claiming that the price at which India is buying Rafale aircraft now is Rs 1,670 crore for each, three times the Rs 526 crore, the initial bid by the company when the UPA was trying to buy the aircraft. It has also claimed the previous deal included a technology transfer agreement with HAL.
The NDA has not disclosed details of the price, but the UPA deal, struck in 2012, was not a viable one, former defence minister Manohar Parrikar has previously said, implying that it would have never been closed and that, therefore, any comparison is moot.