New Delhi: The Supreme Court has reserved its order on whether it would examine the documents on the Rafale deal that the government says were stolen from the ministry of defence.
At the outset, Attorney General K K Venugopal, appearing for the Centre, claimed privilege over documents pertaining to the fighter jet deal and told the Supreme Court that no one can produce them in the court without the permission of the department concerned.
Venugopal took refuge in section 123 of the Evidence Act and provisions of the RTI Act to buttress his claim. He also contended that no one can publish documents which relate to national security as security of the State supersedes everything else.
Advocate Prashant Bhu-shan, one of the petitioners seeking review of the Rafale verdict, opposed the submission and said that the documents, which AG says are privileged, have been published and are already in public domain. He further pointed out that RTI Act says public interest outweighs other considerations and no privilege can be claimed, except for documents which pertain to intelligence agencies.
Justice K M Joseph intervened to tell the Attorney General that the Official Secrets Act cover on official noting on files had lost sanctity after the RTI Act was notified. Now, the Act requires the government to produce the files in cases of public interest and corruption. The RTI Act was intended to bring a revolution in the concept of confidentiality of documents, let us not go back, the judge said.
After Attorney General KK Venugopal argued that the petitioners had illegally got access to classified files and made them public, Justice Joseph, a part of the three-judge bench led by Chief Justice Ranjan Gogoi, pointed out that in cases of corruption and human rights’ violations, the RTI Act may apply even when dealing with sensitive information in sensitive organisations.
“According to you, these documents affect national security and court should not interfere… we have to consider it under the RTI act,” said Chief Justice Gogoi.
In an interesting development, the court said that the Right to Information Act had ushered a revolution on the concept of confidentiality of documents In response to the government’s argument that the documents have been accessed through illegal means, Bhushan said, “If a document is relevant in deciding a fact, it is irrelevant how it was obtained”.
He also cited the Pentagon Papers case of the US, in which defence documents relating to Vietnam War were allowed to be published. The US Supreme Court in an emphatic judgment had rejected the government claim of national security, said Bhushan.
He also cited the S P Gupta judgment which had laid down that the only test to be applied for public interest is whether the public interest outweighs national security, if such documents are disclosed. When the court stressed that the RTI Act overrides the OSA, the AG shot back: “Security of state supersedes everything.”
Bhushan claimed the government had itself leaked these documents to friendly media. Moreover, he said all kinds of details regarding the defence purchase are disclosed in the CAG report, though it had redacted the pricing details. He also cited the 2G scam case in which “the same issue arose regarding disclosure of source” with regard to a register of visitors at a former CBI director’s residence.
He pointed out that the Apex Court had turned down former DBI director Ranjit Sinha’s request to disclose identity of the whistleblower who had illegally accessed the visitors’ register. Former Union minister Arun Shourie, who is one of the review petitioners, submitted that he was thankful to the Centre and the Attorney General for saying in their affidavit that these are photocopies, proving the genuineness of these documents.