The Government lost out its claim to seek privilege over the 'leaked Rafale files' as the Supreme Court on Wednesday said that since the media has published it and brought it into public domain, there was no reason why they should not be permitted to be used as evidence in the review petitions.
The decision came as a big blow to the Centre which had objected the hearing of the review petitions filed by former Union Ministers Yashwant Sinha, Arun Shourie and advocate Prashant Bhushan.
The petitioners had annexed these documents in the review petition to reopen the entire controversy surrounding the Rafale deal, once put to rest by the SC on December 14, 2018. The SC's decision also provided fodder to the Opposition parties to corner the government on the deal.
The bench of Chief Justice Ranjan Gogoi, Justices SK Kaul and KM Joseph by two separate verdicts came to a common conclusion that the objection of the Centre needs to be dismissed. It said, "We hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents (leaked classified files), admissibility of which, in the judicial decision making process, has been sought to be questioned by the Centre in the review petitions."
Hours after the SC order, the Ministry of Defence claimed petitioners are using documents with the intent to present "a selective and incomplete picture" on matters pertaining to national security. "In the review petitions, the petitioners have relied upon the documents, some of which could not have been placed in public domain," it said in a statement.
The documents that form the bone of contention are: an eight-page note dated June 1, 2016 written by three members of the Indian Negotiating Team (INT) in the Rafale deal, Note18 of the Ministry of Defence marked 'Secret' under the Official Secrets Act (OSA), and Note 10 dated November 24, 2015 by Deputy Secretary, MoD, AIR III) marked 'Secret' under the OSA.
Attorney General KK Venugopal argued that these documents were unauthorisedly leaked and hence claimed 'privilege' under Section 123 of Evidence Act on its further use. Those who stole or used it were liable for punishment under the OSA, he added.
In response, the bench said, "The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the Centre... that apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?"
Justice Joseph, in his separate but concurring 38-page judgment, rejected the Centre's argument that the leaked documents cannot be disclosed under Right to Information (RTI) Act. The judge noted that Section 8(2) of the RTI Act marked a "legal revolution" that will override exemptions under OSA as well.
Replying on the privilege claim, Justice Joseph said, "The documents in respect of which the privilege is claimed are already on record." Though the manner in which the evidence was procured was illegal, it would not have significant bearing on the court's decision to act upon the same, he added.
Also, the Centre did not contest the correctness of the leaked documents but only requested it to be removed from the record, the judgment noted. Justice Joseph said that since the review arises on a complaint of grave wrong being done at the highest echelons of power, larger public interest will weigh over other considerations to consider the documents.
Caught In Turbulence
What the court said on Rafale files
- The three leaked confidential documents and their relevance will go into the review petition proceedings
- Privilege cannot be claimed over documents already published and in public domain
- Even if documents are procured illegally, that would not be significant on the SC’s decision to act upon them
- Public interest will outweigh other concerns as the issue arises on a complaint alleging grave wrongs in higher echelons of power
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