Rafale debate in a new light

ON rare occasions, the hearing of petitions seeking review of a judgment for its apparent errors leads the Supreme Court to debate contentious issues in an academic manner, in a bid to determine its own jurisdiction and competence to intervene in a controversy that has taken the country’s politics by a storm ahead of a general election.

There was no doubt that the case of the Rafale deal between India and France, involving the acquisition of 36 aircraft for the Indian Air Force (IAF), was one such case before the court on March 6.

On that day, the Supreme Court bench of Chief Justice of India (CJI) Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph heard the petitions filed by former Union Ministers Yashwant Sinha and Arun Shourie, along with advocate Prashant Bhushan, seeking review of the court’s December 14, 2018, judgment in the Rafale case.

The Supreme Court’s December 14 judgment in the case had dismissed their pleas for an independent probe into the deal. Along with the review petitions, the bench heard the Centre’s application seeking correction of certain grammatical errors in the judgment, which had resulted in the distortion of facts, and another application by the petitioners (Sinha, Shourie and Bhushan) seeking perjury proceedings against the officials of the Centre who drafted written submissions to the court in a sealed cover, which apparently distorted the facts of the deal.

The hearing of the review petitions and the applications with specific prayers were heard in open court, a departure from the court’s usual practice of hearing such petitions in the chambers of the judges who had heard and decided them first, in view of the importance of the issues raised. At the outset, Prashant Bhushan submitted to the bench that the prayers of the petition filed by him, along with Sinha and Shourie, were not for cancellation of the deal as in Vineet Dhanda’s and Manoharlal Sharma’s petitions—the first two that had led the court to issue a notice.

The petition filed by Sinha, Shourie and Bhushan sought court-monitored investigation into the deal, following a complaint filed by them with the Central Bureau of Investigation (CBI) alleging wrongdoing and non-compliance with established procedures in connection with defence deals.

It was the grievance of the trio that the court had misunderstood their prayers as being synonymous with the petitions filed by Dhanda and Sharma, and dismissed them on that ground, without answering their pleas for an independent probe.

The only question before the court, therefore, was whether their complaint with the CBI warranted a probe and what the status of that complaint was, Bhushan submitted.

He also pointed out that there were a large number of serious errors of fact which the court relied upon for passing its judgment and that those errors originated from the notes submitted by the Centre in a sealed cover.

He asserted that the Centre concealed critical material facts from being disclosed to the court. Bhushan, to buttress his contentions, then cited an eight-page note submitted by three of the seven members of the Indian Negotiating Team (INT), where they objected to the PMO’s (Prime Minister’s Office) interference in the price negotiations as it was weakening the Defence Ministry’s position. The note had been published earlier by The Hindu .

Attorney General K.K. Venugopal objected, saying that the note being used by Bhushan for his submission was stolen from the Defence Ministry and that a probe had been initiated to determine the source of the “leak”, in an apparent reference to the series of disclosures on the Rafale deal in The Hindu by N. Ram.

Offence under OSA

“This will be an offence under the Official Secrets Act. Action may be taken against two newspapers ( The Hindu and the magazine Caravan ) which published these documents. Action is also warranted against the counsel who relied on them. These are matters which involve the very security of the State. The strategy is to put out a news item the day before the hearing so as to influence the hearing. Today also The Hindu has published something [an apparent reference to N. Ram’s front-page story on the final report of the seven-member INT submitted to the Defence Ministry on July 21, 2016, explaining how the absence of bank guarantees meant a more expensive new Rafale deal]. This, by itself, is contempt of court,” Venugopal argued.

The Attorney General further said that The Hindu , by publishing a stolen document, was guilty under the Indian Penal Code for theft and under the Official Secrets Act for accessing privileged documents.

“Review petitions and perjury petition are liable to be dismissed in limine [at the threshold stage itself] on this ground alone,” he contended. Venugopal made a distinction between the INT’s final decision, which justifies judicial review, and the team’s notes prior to the decision, which do not call for judicial interference.

According to him, the second noting of the INT contains the opinion that there had been an overreaction initially and that it was the INT’s final opinion on this.

In response, Prashant Bhushan argued that Venugopal’s statement that action would be taken against the petitioners who were only trying to bring the correct facts on record was an attempt to intimidate them and amounted to criminal contempt of court.

The Attorney General said: “These documents were never intended to be in public domain.”

However, he did not divulge the reasons why these documents were concealed from the public eye. “If the CBI probe is directed now, the damage done to the country will be immense. Do the petitioners know how many aircraft we have? Whether they can compete with F-16s,” he asked. He also said that if the court directed an inquiry into the deal, the whole process would have to start again.

At this point, Justice K.M. Joseph queried whether the court would be correct in ignoring relevant evidence merely on the ground that it was illegally obtained. According to him, a piece of evidence, even if stolen, could be looked into if it was relevant. Venugopal said: “Your Lordships may have a view on admissibility as evidence of a stolen document, but I have a different view.” He felt that the petitioners had a duty to disclose the source of their documents. “Where did they get it from [in] the Defence Ministry?” he asked. He cautioned the bench that defence was one of the most sensitive matters of the state involving the safety of “each one of us”.

The CJI’s query about the status of the Centre’s probe into the leak, since the The Hindu ’s first story on Rafale on February 8, intrigued the Attorney General, who sought to know how it could influence the court’s decision to intervene in the matter. The CJI then posed a hypothetical problem to be solved by the Attorney General: “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 responded by saying that unless the accused disclosed the source of the document, it should be construed as a stolen one, and therefore, the court should not consider it.

Why make documents untouchable?

The CJI, however, sought to draw a distinction between the status of the petitioners and their documents. One can doubt the bona fides of the petitioners if they refuse to divulge the source of the documents which they rely on, but why should that make the documents themselves untouchable, he asked.

The Attorney General avoided a direct reply to this and went on a tangent, saying that this was more a political controversy, with discussion of the transaction taking place every day in the media.

“In this limited area concerning the defence of the nation’s frontiers, would it not be appropriate for Your Lordships to exercise restraint?” he asked, relying on the Supreme Court’s December 14 judgment that sought to justify its restraint because national security and pricing of defence equipment being purchased were beyond the court’s competence to examine.

The Attorney General also hinted that the opposition parties were using the controversy to “destabilise” the government, and therefore, the bench’s intervention in the matter would, in all likelihood, add fuel to their campaign.

When the CJI disclosed that the bench would accept the Attorney General’s plea to not accept the controversial documents, Bhushan claimed that it would not make any substantial difference to the case as he had disclosed the sources to the bulk of the documents that he had filed.

He also told the bench that the Right to Information Act overrides the Official Secrets Act, as under the proviso to Section 8(1) (i) of the former, all notings of a like nature have to be disclosed to the public.

Section 8(1) (i) says that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, provided that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over.

Bhushan also said that in the 2G and coal scam cases, dealt with by the Supreme Court earlier, the court had relied on official documents to order a probe, although those documents were not the ones attributed to the official sources. He argued that corruption allegations in defence deals did not enjoy any special exemption under the law. The bench adjourned further hearing of the case to March 14.

Opposition parties and media outfits have already rallied to the support of the freedom of expression, which, according to them, stood to suffer following the Attorney General’s submissions. The Editors Guild of India condemned the Attorney General’s plea seeking the disclosure of The Hindu ’s sources for the documents published, calling it “reprehensible”.

The threat to use the Official Secrets Act against the newspapers for publishing the leaked material also came in for criticism, along with the government’s intimidation of the media to curb the freedom to report and comment on the Rafale deal. “No force on earth can make me reveal the source,” N. Ram said in response to the Attorney General’s statement during the hearing.

On March 8, the Attorney General described the media reports of the March 6 court proceedings attributing to him the statement that the Rafale documents were “stolen” from the Defence Ministry as “incorrect”. He clarified that he meant that the petitioners had used the “photocopies” of the original papers, deemed secret by the government.