Government cites ‘theft’ to scuttle plea for review of Rafale judgement; says ‘stolen’ papers were accessed by Hindu newspaper and are not admissible in court; also threatens the media house with prosecution under the Official Secrets Act
New Delhi: The Modi government informed the Supreme Court on Wednesday that documents linked to the controversial Rafale deal have been ‘stolen’ from the files of the Ministry of Defence — possibly by public servants — and were given to The Hindu newspaper for publication.
Advocate General K K Venugopal – seeking quashing of the plea for review of the Rafale judgment – further told the court that it cannot entertain the documents stolen from the defence ministry, extracts of which were a part of the review petition filed by senior advocate Prashant Bhushan.
The AG also said the government has initiated action against The Hindu and the ANI news agency for publishing the stolen documents. These pertained to pricing of Rafale and dissenting note of a negotiator, a topic of frantic discussion in political circles.
It was further contended by the AG that the media house which had accessed the original documents were guilty of violating the Official Secrets Act. However, Bhushan contended there was no infringement, explaining that the access to the noting on the file was tenable under the Right to Information Act.
The hearing remained inconclusive and will resume on March 14. Rejecting a plea to continue the hearing on Thursday without a break, Chief Justice of India Ranjan Gogoi said, “The country needs fighter jets, the country needs teachers, the country needs so many things, but we have limited time.”
Bhushan wanted the court to take on record the ‘stolen’ documents in the form of news reports published in The Hindu, in support of his submission that the court had unknowingly relied on “erroneous facts” in its earlier judgment, which he has challenged. But the AG was adamant that these documents cannot be entertained as they were stolen from the defence ministry and the review petition and the perjury petition are liable to be dismissed on this ground alone.
Venugopal hinted at action not only against The Hindu and the ANI for publishing the documents on Rafale negotiations but said action was also warranted against Bhushan. “Their strategy was to put out a news item the day before the hearing so as to influence it.
Today also The Hindu has published something. This by itself is contempt of court,” the AG argued, adding that “the newspaper is guilty under IPC (Indian Penal Code) for theft and under Official Secrets Act for accessing privileged documents.
Observing that The Hindu published the Rafale file dissent noting first on February 8, the CJI asked: “What have you done till now? You say the papers were stolen. Has the defence ministry lodged any police complaint?” He asked the AG to let the Defence Ministry file an affidavit that the documents used in the reports are stolen.
Instead of hearing out Bhushan in support of the documents, there was a duel between the Bench and the Attorney General in the post-lunch session on the admissibility of documents supposedly obtained through illegal means. The CJI posed a hypothetical question: “An accused is having difficulty in proving his innocence. He steals a document and shows it to the judge.
The document clearly shows he is innocent. Should the judge not admit the document?” The Attorney General said once the document is a “subject matter of criminality,” the court should “not look into it.” He assured the court that a report would be submitted on Thursday on what action was being taken by the government on the alleged theft of the documents.
Advocate Prashant Bhushan was taken back when he resumed arguments and the CJI told him not to argue on the basis of the alleged stolen documents until the Bench decides whether those documents can be entertained. Former BJP minister Arun Shourie, who is also a petitioner, argued that the petitioners have a right to place the documents before the court if they establish that the government had furnished wrong facts to elicit a favourable verdict.