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Rafale case: SC wraps up hearing on Centre claim of privilege over leaked Rafale documents

The Supreme Court Has Commenced The Hearing On Pleas Seeking Review Of Its Judgement In Rafale Deal Case.

News Nation Bureau | Edited By : Abhinav Gupta | Updated on: 14 Mar 2019, 04:30:11 PM
Rafale fighter jet

New Delhi:

The Supreme Court on Thursday commenced the hearing on pleas seeking review of its judgement in Rafale fighter jets deal case. 

Yesterday, the Centre had told the apex court that documents filed by the petitioners seeking review of its Rafale deal verdict are "sensitive to national security" and those who conspired in photocopying the papers have committed theft and put the security in jeopardy by leaking them.

The Ministry of Defence said an internal enquiry commenced on February 28 and is in progress over the leakage of sensitive documents and it is of "utmost concern" to find out where the leakage took place.

The affidavit filed by the ministry said documents attached by the petitioners -- former Union ministers Yashwant Sinha and Arun Shourie as also activist advocate Prashant Bhushan -- relate to war capacity of combat aircraft and have been widely circulated, available to the country's enemy and adversaries.

The affidavit assumes significance as Attorney General K K Venugopal on the March 6 hearing before a bench headed by Chief Justice Ranjan Gogoi had alleged that the review petition was based on the documents which were stolen from the ministry.

Two days later, Venugopal claimed the Rafale documents were not stolen from the Defence Ministry and he had meant in his submission before the top court that the petitioners in their application had used "photocopies of the original" papers, deemed secret by the government.

The review pleas were filed against the December 14 verdict dismissing all the pleas against the deal procured by India from France.

The Indian government scrapped a $500 million deal with Rafael for 321 Spike ATGM systems and 8,356 missiles in favour of the MPATGM system in December 2017. 


Supreme Court reserves order on Centre claiming privilege over leaked documents in Rafale fighter jet deal case.





Can’t we even look into documents to decide if they are privileged, Justice Joseph asks AG

None of the documents we have relied upon has nothing to do with national security, submits Prashant Bhushan.

Section 123 of Evidence Act does not apply here because it deals with unpublished documents; In this case documents have already been published, submits Prashant Bhushan

Prashant Bhushan now citing Pentagon Papers case of USA.


"This was a case on whether defence documents relating to Vietnam war could be published. The US Supreme Court in an emphatic judgment rejected the govt claim of national security," says Prashant Bhushan.

There is no government to government contract in Rafale jets deal as there is no sovereign guarantee by France, Bhushan tells SC.

Press Council of India Act provides provisions for protecting source of journalists, Bhushan to SC

In that case, the Supreme Court had turned down forner CBI Director Ranjit Sinha's request to diclose identity of whistleblower who had accessed the visitors Register of Sinha's residence, submits Prashant Bhushan.

Prashant Bhushan cites 2G case wherein "same issue arose regarding disclosure of source" with respect to a register of visitors of former CBI Director's residence.

Prashant Bhushan submits that certain documents which have been objected to by Centre now was already part of submissions of the petitioner when main case was filed in November last year.

Responding to Prashant Bhushan's submission, Justice Joseph reiterates the RTI Act brought a revolution. "In 2009, your own Govt said file notings can be made available under the  RTI. Let us not go back now," the judge says.

No one can publish documents which relate to national security. Security of state supercedes everything, AG tells SC. 

SC asks Bhushan to restrict himself to submissions on Attorney General's preliminary objection. “Only if we overrule the preliminary objection, we will go into other details,” submits CJI Ranjan Gogoi.

There has been no instance so far of pricing details being redacted in CAG report, submits Prashant Bhushan.

All kinds of details regarding defence purchases are disclosed in CAG report also, says Prashant Bhushan.

From time to time, government itself has leaked these documents to friendly media like leak of file notings of Raksha Mantri, submits Prashant Bhushan.

In this case, the documents in question have already been disclosed and are already in public domain, says Prashant Bhushan.

Citing SP Gupta judgment, Prashant Bhushan says: "It laid down that only test to be applied is test of public interest; That is whether public interest would outweigh national security if such documents are disclosed."

These documents are already in public domain, says Prashant Bhushan.

The objection by Centre against disclosure of documents is malafide; the purpose of this objection is not to protect national security or defence secrets, says Prashant Bhushan

Attorney General K K Venugopal claims privilege over Rafale documents, refers to section 123 of Evidence Act and provisions of RTI Act. 

RTI Act of 2005 intended to bring a revolution, let us not go back, Justice KM Joseph stresses on RTI jurisprudence and its effect on disclosure of information which used to be withheld earlier on the grounds of security of State.

What privilege do you (Attorney General) claim? They have already produced them in court. Attorney General: They have produced it after stealing it. State documents can't be published without explicit permission.

Attorney General KK Venugopal says Supreme Court should direct removal of the leaked pages from the review petitions as the government claims privilege over these documents

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First Published : 14 Mar 2019, 03:22:07 PM

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