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Rafale case: SC allows use of leaked documents

Source: PTI
Last updated on: April 10, 2019 21:51 IST
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Congress president Rahul Gandhi''s claim that the apex court has made it "clear" that the prime "committed a theft" triggered accusations from the BJP that this was gross contempt of court. 

In a jolt to the Centre, the Supreme Court on Wednesday agreed to hear petitions for a review of its verdict in the Rafale jet deal on the basis of 'leaked' secret documents by dismissing its preliminary objections.

The apex court in its verdict on December 14 rejected demands for a court-monitored probe into the Rafale deal and gave a clean chit to the Modi government on procurement of 36 fighter jets from French company Dassault Aviation, holding there was no irregularity in the decision-making process, pricing or selection of Indian Offset Partner.

Dismissing the government's contention that sensitive documents accessed by the media on the Rafale deal can't be evidence by claiming privilege and that the petitions were not maintainable, the court on Wednesday said it will examine the papers while reviewing on merits the review petitions.


As the court order gave fresh ammunition to the Congress and other opposition parties to attack the Modi government ahead of the Lok Sabha polls, senior advocate Vikas Singh, who had appeared for a petitioner Vineet Dhandha, said going by the judgement the court will look into various aspects of the deal including the issue of pricing and also selection of the Indian offset partner.

Delivering a 58-page unanimous verdict, the top court also went on to say that the publication of the said documents in 'The Hindu' newspaper reminded it of the consistent views of the court upholding the freedom of the press in a long line of decisions.

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

Union Law Minister Ravi Shankar Prasad dismissed suggestions that the verdict was a setback or a jolt to the Centre, saying the merit of the case was yet to be decided.

The Centre had submitted that the three privilege documents which were unauthorisedly removed from the defence ministry was used by the petitioners to support their review petitions.

A three-judge bench delivered two separate but unanimous verdicts rejecting the objections raised by the Centre that those documents were not admissible as evidence under section Section 123 of the Indian Evidence Act and no one can produce them in court without the permission of the department concerned as those documents are also protected under the Official Secrets Act.

Further, the Centre failed to impress a bench comprising Chief justice Ranjan Gogoi and Justices S K Kaul and K M Joseph that the disclosure of those documents were exempted under the Right to Information Act as per Section 8(1)(a) and those who conspired in photocopying the papers committed theft and put national security in jeopardy.

Chief Justice Ranjan Gogoi, who wrote the judgement for himself and Justice Kaul, noted that all the three documents were in "public domain" and published by prominent daily, The Hindu was "in consonance with the constitutional guarantee of freedom of speech."

"We deem it proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of contents of the three documents, admissibility of which, in the judicial decision making process, has been sought to be questioned by the respondents in the review petitions," the CJI said.

The CJI, who penned a separate 18-page judgement, said the three documents used by former union ministers Yaswant Sinha and Arun Shourie and lawyer Prashant Bhushan in their review petitions were published in ‘The Hindu' on different dates in February and one of the papers was also published by a digital news portal ‘The Wire'.

"The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of documents in ‘The Hindu' newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech," Justice Gogoi said.

Shourie said he was delighted by the verdict.

"We are delighted it is an unanimous verdict dismissing Central government's peculiar argument on admissibility of documents. Centre's argument meant no wrong can be done in the defence deal," Shourie said.

Reacting to the order, the defence ministry said the petitioners in the are using certain documents with the intention to present a selective and incomplete picture of internal secret deliberations relating to national security.

Opposition parties hailed the verdict, saying the Modi government now has "no official secrets act" to hide behind and a probe into the "scam" will take place.

Congress chief spokesperson Randeep Surjewala said the verdict has blown the lid off the "lies" of Prime Minister Narendra Modi on the Rafale deal, and termed it as the first step towards justice with the last being a joint parliamentary committee probe.

But Congress president Rahul Gandhi''s claim that the apex court has made it "clear" that the prime "committed a theft" triggered accusations from the BJP that this was gross contempt of court.

Senior BJP leader and defence minister Nirmala Sitharaman said Gandhi attributed to the Supreme Court what it had never said in its order on the Rafale deal.

"The Congress president probably doesn't read even half a paragraph of the court's order, but here, by saying that the court has has said 'chowkidaar chor hai', it is verging on contempt of court.," Sitharaman told a press conference.

Gandhi has crossed the line of decency in his comments on the court, she said, adding that he is repeatedly misleading people on the Rafale fighter jet deal.

“Now the SC has made it clear that 'chowkidarji' (watchman) has committed a theft,” Gandhi earlier told reporters after filing his nomination papers from the Amethi Lok Sabha constituency.

He claimed the apex court has “accepted that there is some corruption in Rafale”.

Asked whether the court order is a setback for the government, Sitharaman said, "Not at all."

The Centre has maintained there were no irregularities on pricing and selection of the Anil Ambani owned company as the offset partner of Dassault, the French manufacturer of Rafale, as alleged by the opposition. Anil Ambani has also dismissed oppsition allegations of irregularities.

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