The Government plea in the Supreme Court opposing a review of its order in the Rafale deal on the ground that the documents on which it was based were ‘stolen’ is untenable. So long the authenticity of those documents is not challenged, how they came into the hands of the Press is irrelevant in a vast majority of cases.
The only exception can be a genuine threat to the security of the country. In the Rafale deal, it is far from the case. The Attorney General K K Venugopal told a three-member bench of Chief Justice Ranjan Gogoi, Justices Sanjay K Kaul and K M Joseph on Wednesday that the documents in question were ‘stolen or purloined by former or current officers in the ministry of defence’ and that these were ‘privileged document under the Official Secrets Act.’
Besides, the information could not have been given under the RTI since it involved national security and affected relations with other nations. The AG went on to say that it was a crime under the OSA and punishable with jail terms of three to 14 years. We are not surprised by the government plea. All previous governments too have argued on the same lines. But we are also not surprised by the counter from the bench.
Justice Joseph said ‘stolen material can be relied upon provided it is relevant…you cannot have a general proposition against its use.’ At the heart of the debate was whether it was right for the PMO to conduct parallel negotiations with the French for the supply of the fighter jets when the relevant negotiations committee in the Defence Ministry was already engaged in it. It boils down to a matter of process and procedures, though no hanky-panky was involved in the actual decision making.
The PMO may have its own compulsions to clinch the matter since Modi was to visit Paris on a state visit and wanted to make a splash by announcing the deal which had been hanging fire for nearly two decades. When the then Defence Secretary noted in the file that the PMO was engaged in parallel negotiations, then Defence Minister Manohar Parrikar brushed aside the objection, saying there was no wrong being committed.
N Ram of The Hindu who splashed the news about parallel negotiations in his ‘exclusive report’ based on these documents deliberately omitted to mention Parrikar’s noting on the same file. It was left to Defence Minister Nirmala Sitharaman to inform Parliament about the comment of Parrikar in the file.
The fact that Ram failed to mention this in his report despite it being part of the documents given to him by his unnamed sources indicates mischief aforethought, an intent to show the government in bad light. Leaving that aside, it is preposterous to suggest that Ram or any other journalist can be proceeded under the OSA for publishing what in government parlance is marked ‘top secret.’ Leaked documents for whatever reason constitute a stable source of journalistic scoops and exclusives.
Not every leaked paper from the official files is sacrosanct from the point of national security. Even though we have not an iota of doubt that aside from short-circuiting of processes and procedures, the PMO did nothing wrong in the Rafale deal, clinching it after long years of delays and indecision, even this violation of laid-down drill constitutes a breach of norms and can be questioned by the Opposition.
Rahul Gandhi of course talks utter nonsense when he wants Modi to be prosecuted for parallel negotiations, especially when Sonia Gandhi without holding any office used to summon key files from the Manmohan Singh PMO. Meanwhile, it is not clear whether the courts can pronounce on the procurement costs of defence equipment, though they can comment on whether the lawful procedures were followed in the decision-making.
It is unfortunate that Modi’s propensity to inject a measure of urgency in decision-making has become controversial. He could not have anticipated his well-meaning decision to push through a long-pending purchase of vital fighter jets would give his detractors a handle to smear him. Fortunately, there are no takers for the childish campaign by the Congress President to suggest that Rafale is a Rs 30,000 crore scam. That is utter nonsense, of course.