How Modi govt tried and failed to invoke Official Secrets Act in Rafale case

Rafale files were stolen, they were privileged documents, a state secret — the Narendra Modi government tried everything to convince the Supreme Court against admitting the classified files for hearing in the case against its December 14 verdict. However, the top court unanimously rejected the Centre’s plea on Wednesday, which spells as massive setback for the Modi administration. The order comes as India gears up to cast its vote in the first phase of the Lok Sabha Elections tomorrow. 

In earlier hearings in March last month, Attorney General KK Venugopal appearing for the Modi government had said that ‘The Hindu and N Ram using these “secret documents” was in breach of the Official Secrets Act.’

Enacted under British rule in 1923, the Official Secrets Act (OSA) provides the framework pertaining to handling cases of espionage, sedition and any other threat to the unity and sovereignty of the country.

The law applies to anyone who is found to be indulging in spying, sharing “secret” documents or information, unauthorised use of uniforms, communicating with “foreign agents”, harbouring spies, interfering with armed forces in restricted or prohibited areas and so on. The punishment under the Act involves fine or imprisonment from three to 14 years or both.

Section 5 of OSA, deals with sharing of information that can be in the form of “any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place”.

The Attorney General had said that, “certain documents were stolen from the Defence Ministry either by public servants and an investigation is pending. We are dealing with defence purchases which involve security of the state. It is a very sensitive case.” Venugopal made the statement when Prashant Bhushan, one of the petitioners, tried to submit an eight-page note. At that point, the Attorney General objected to it and said that those note files were stolen from Defence Ministry and probe into that is underway.

“This would be an offence under Official Secrets Act. Action might be taken against two newspapers which published. Action is also warranted against Senior counsel These are matters which involve the very security of the State,” Venugopal added. However, Bhushan said that critical material facts were suppressed from the court. “There are a large number of serious errors of fact which court relied upon for passing the judgment it did. Those facts were presumably supplied to the court by Centre in sealed cover notes,” Bhushan added.

The Modi government had requested the Supreme Court to dismiss all the review petitions for using stolen documents on Rafale deal, in violation of the laws concerned.

A day after the December verdict, the Centre had moved the top court seeking correction in the judgment where a reference was made about the Comptroller and Auditor General (CAG) report and Parliament's Public Accounts Committee (PAC), saying "misinterpretation" of its note has "resulted in a controversy in the public domain".

On December 14, 2018, the top court had dismissed various pleas challenging the deal for procurement of 36 Rafale fighter jets by India from France, saying that there was no occasion to "really doubt the decision-making process" warranting setting aside of the contract.