The government on Wednesday told the Supreme Court that documents related to the Rafale aircraft deal have been stolen from the defence ministry and threatened The Hindu newspaper with the Official Secrets Act for publishing articles based on them.
While publishing articles based on stolen documents amounts to violation of the Official Secrets Act, entailing maximum punishment of up to 14 years, the contempt law attracts six months jail as also a fine of Rs 2,000.
An investigation into the theft is on, the attorney general said on a day the newspaper published another article on the fighter jet deal.
The bench, also including Justices S K Kaul and K M Joseph, was hearing a batch of petitions seeking a review of its December 14 verdict dismissing all the pleas against the deal procured by India from France.
Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed a petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of public interest litigation against the Rafale deal in December.
When Bhushan referred to an article written by senior journalist N Ram in The Hindu, Venugopal said the write-ups were based on stolen documents.
An FIR has not been registered so far into the theft of documents pertaining to Rafale deal, he added.
The first write-up appeared on February 8 and Wednesday's edition had another article aimed at influencing the court's proceedings which amounted to contempt of court, he said.
The newspaper published the documents by omitting the word 'secret' on top, he said, seeking a dismissal of the review petitions and raising objections to Bhushan's arguments based on the The Hindu's articles.
The bench sought to know from the Centre what it has done when it alleges that the stories are based on stolen material.
The Supreme Court also asked, ‘Are these documents untouchable’ for consideration by courts.
“We can understand you saying that petitioners came with unclean hands. That they got the documents through doubtful sources. But it is another thing to say that the court cannot consider these documents at all. That they are untouchable,” the bench observed.
The high voltage hearing witnessed the bench asking the Centre: “When there is allegation of corruption, can the government take shelter under national security?
“If an act of corruption is committed in Rafale deal, will govt take shelter behind Official Secrets Act? I (CJI) am not saying it is committed, but if it is then government cannot take shelter behind OSA.”
It further said it is settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.
During the hearing, the bench also mentioned the Bofors pay off scam and said, “There were allegations of corruption in Bofors. Now will you say the same thing that a criminal court shouldn't look into any such document in that case? Here we have an open system.”
The attorney general replied: “Yes, we have an extremely open system here. This is the only country where a court is examining a defence deal as if it is an administrative issue. No other court in any other country will do it.”
The bench said if the documents were stolen, the government should put its own house in order.
“It is one thing to say that we should look at these documents with suspicion. But to say we can't even look at those documents may not be a correct submission in law,” the bench observed.
The issue of stolen documents was raised by Venugopal when Bhushan submitted an eight-page note to the bench.
On behalf of Sinha, Shourie and himself, Bhushan said the top court would not have dismissed the plea for an FIR and the probe, had critical facts not been suppressed.
Venugopal said the documents relied upon by Bhushan were stolen from the defence ministry and an investigation into the matter was underway.
The CJI said hearing Bhushan did not mean the top court was taking on record the documents on the Rafale deal.
Justice Gogoi also asked Venugopal to tell the court what action had been taken on theft of documents on the aircraft deal.
The AG submitted that the documents on the deal relied on by the petitioners were marked secret and classified and are therefore in violation of the Official Secrets Act.
He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.
Referring to the aerial combat with Pakistan last week, he said the country needs the Rafale jet to defend itself 'from F-16 fighter planes that recently bombed us'.
"Without Rafale how can we resist them," he said, adding that two squadrons of Rafale fighter jets are coming to India in flyaway condition and the first one will be in by September.
He also said that although MiG-21 of 1960s performed beautifully against F-16, Rafale fighter jets were needed.
The Bench, which will hear the review petitions further on March 14, was told by Venugopal that every statement of the apex court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.
Opposing the plea for CBI inquiry into the Rafale deal, Venugopal said any order to the effect would be damaging to the country as the recent incidents have shown how vulnerable is the scenario in which the country was trying to meet its defence requirements.
However, the bench said the issue of national security did not arise in the case as allegations were of grave crime of corruption.
The attorney general went ahead with his submissions and said "certain issues are outside the purview of judicial review.
"Do we have to come to the court to justify when we declare war, when we declare peace? Do we have to come and seek permission of the court every time?" he asserted.
The hearing also saw the bench asking the Attorney General, "Can relevant evidence be cut out saying it is illegally obtained? Can't stolen evidence be looked into if it is relevant?
Venugopal said: "They have come with a document which is stolen. Your Lordships might have your view on it but I have a different view."
The bench also gave an hypothetical situation that if an accused is having difficulty in proving his innocence, he steals a document and shows it to judge.
"The document clearly shows he is innocent. Should the judge not admit the document," the bench asked the Attorney General, who said here also disclosure of sources would come to play.
This led bench to say, "If your submission is that petitioners have not come bona fide, then that's different. But can you say that the document is completely not touchable?"
The Attorney General also said the entire matter was given a political colour, and submitted that there was a need for maintaining restraint by the apex court.
Bhushan told the SC that it is for the first time in Comptroller and Auditor General’s history that it has given redacted pricing to Parliament in the Rafale deal.
The government itself has disclosed the price of the Rafale deal thrice in Parliament, Bhushan told the bench.
"The government itself disclosed thrice in the Parliament the price of Rafale fighter jet deal. They even gave price of up-gradation of Mirage fighter aircraft.
“This is the first time in the history of Comptroller and Auditor General (CAG) that redacted pricing of fighter jet deal were given.
“This is astonishing. This was done on the insistence of government," said Bhushan.
He said the government knew before hand that CAG report will contain redacted pricing of Rafale fighter jets.
"This is contrary to the CAG Act. They cannot table redacted pricing details before the Parliament and the Public Accounts Committee (PAC). This is the first time it has been done and the government knew about it," Bhushan added.
After Bhushan, the bench gave opportunity to Shourie to make submission and he said there was need for reviewing the judgement as the Centre did not come up with clean hands and suppressed the material facts.
Won't divulge source of documents: N Ram
Unruffled by the Centre's stand, Hindu Publishing Group Chairman N Ram said that documents related to the Rafale deal were published in public interest and nobody would get any information from The Hindu newspaper on the confidential sources who provided them.
The documents were published because details were withheld or covered up, the veteran journalist said.
"You may call it stolen documents...we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves," Ram told PTI.
"I will not comment on the proceedings of the Supreme Court. But whatever we have published has been published.
"They are authentic documents. And they have been published in the public interest because these details have been withheld or covered up," Ram said.
"... It is the duty of the press - through investigative journalism - to bring out relevant information or issues of great importance for the public interest," he added.
On February 8, Ram wrote in The Hindu that the Defence ministry raised strong objections to 'parallel discussions' conducted by the PMO (Prime Minister's Office) during the negotiations over the Rs 59,000 crore Rafale deal between India and France.
It was allegedly based on government documents related to Rafale deal.
"What we have done is completely protected under article 19 (1) (a) of the Indian constitution -- freedom of speech and expression -- and also under the relevant sections of the Right to Information Act, specifically, its section 8 (1) (i) and section 8 (2), which clearly protects this," Ram said.
