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Rafale case: SC to review its judgement, rely on 3 ‘privileged’ documents

FE Bureau

The Supreme Court on Wednesday decided to hear the review petitions on New Delhi s Rs 59,000-crore Rafale fighter jet deal with France s Dassault Aviation on merits and on the basis of the privileged documents that have been published in the media after its December ruling rejecting a set of petitions in this regard.

The court s decision, ahead of Thursday s first-phase polls of the general elections, came as a setback for the Centre, which has been opposing the eventuality of the court relying on the newly surfaced secret and classified documents, citing the issue of national security .

Dismissing the preliminary objections raised by the government, a Bench led by Chief Justice Ranjan Gogoi, in two separate but concurring judgments, decided to look into the three documents that had pointed to the disparity in pricing details of the 36 jets, objections raised by the Indian Negotiating Team (INT) to parallel negotiations conducted by the PMO, etc.

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The CJI, who wrote the judgment, noted that all the three documents were in public domain . The top court said the date of hearing the review petitions would be fixed later.

Congress president Rahul Gandhi was quick to seize the political opportunity afforded by the apex court s judgment; he claimed that the court has accepted that there is some corruption in Rafale .

Addressing a poll rally in Goa, Prime Minister Modi indicated that the Congress chief was burdened with Bofors sins of his late father (Rajiv Gandhi) and therefore, was accusing others of corruption. The defence ministry on Wednesday said the petitioners were using certain documents with the intention to present a selective and incomplete picture of internal secret deliberations relating to national security .

In its judgment, the court stated that the claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest. To satisfy itself that public interest is not put to jeopardy by disclosure of privileged documents, the court may even inspect them, the court said. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value, Gogoi said.

According to the 18-page judgment, Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the other exemptions, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.

Justice KM Joseph in a separate 38-page concurring judgment said that the case does not strictly involve the claim for privilege as the petitioners have not called upon the government to produce the original and the state does not take objection to the correctness of the contents of the documents.

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The government had argued that the publication of the documents was part of a conspiracy following the leak of these defence purchase records from the Defence Ministry. It said that the documents were unauthorised photocopies of the originals kept in the ministry and sneaked into the public domain.

Attorney General KK Venugopal had submitted that the review petitions were based on stolen documents, which are not admissible in evidence. The national security was at stake and the leak of the documents amounted to offences under the Official Secrets Act, he had claimed.

The review petitions were filed by former Union ministers Yashwant Sinha and Arun Shourie and activist lawyer Prashant Bhushan against the SC’s December 14 judgement that dismissed all petitions challenging the procurement of 36 Rafale fighter jets, observing that due process was followed in signing the deal. The court had also said that it did not find any commercial favouritism in the contract and had rejected the allegation that the government had gone for an overpriced deal to help Anil Ambani’s company bag an offset contract with jet-maker Dassault. There is no evidence of commercial favouritism to any private entity, the SC had said, adding that the perception of individuals cannot be the basis of a fishing and roving enquiry by this court.