Blow to govt: SC to go into decision-making on Rafale

New Delhi: In a huge setback to the Narendra Modi government, the Supreme Court on Wednesday decided to examine the decision-making process in the Rafale deal on the basis of stolen documents published in the media on alleged irregularities in the deal.

A three-judge bench of Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph, in two unanimous judgments, dismissed the preliminary objections raised by the Union of India questioning the maintainability of the review petitions on the basis of the documents which were photocopied and allegedly stolen from the defence ministry, leading to their publication in the media. The Centre claimed “privilege” and immunity under the Official Secrets Act, and asserted that the documents could not be relied upon for evidence.

The CJI, in his separate verdict for himself and Justice Kaul, rejected the Centre’s stand and held 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.

Attorney-general K.K. Venugopal, on behalf of the Union of India, raised a preliminary objection on the maintainability of the review petition. He contended that the review petition lacked in bona fides inasmuch as three documents unauthorisedly removed from the office of the ministry of defence have been appended to the review petition and relied upon by the petitioners.

It was contented that the alleged unauthorised removal of the documents from the custody of the competent authority of the Government of India and the use thereof to support the pleas urged in the review petition was in violation of Sections 3 and 5 of the Official Secrets Act 1923.

The CJI, writing the main judgment, said: “The three documents which are the subject matter of the present controversy, admittedly, was published in The Hindu newspaper on different dates in February 2019. One of the documents was also published in The Wire. 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 respondents.”

The bench pointed out that no question had been raised with regard to the publication of the documents and the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. “No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice. In fact, the publication of the said documents in The Hindu newspaper reminds the court of the consistent views of this court upholding the freedom of the press”.

The CJI also cited a ruling of the US Supreme Court, which refused to recognise a right in the executive government to seek a restraint order or publication of certain papers titled “Pentagon Papers”. The court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the (US) Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorised judicial lawmaking, thereby violating the sacred doctrine of separation of powers”.

The CJI said: “There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a court of law which may have been called upon to adjudicate a legal issue concerning the parties.”

On the claim of privilege, the CJI said on the very face of it, Section 123 of the Indian Evidence Act 1872 relates to unpublished public records but in this case the documents are already published and are in the public domain. Even assuming that the documents have not been procured in a proper manner, the same could not be shut out of consideration by the court, the CJI said, and added that the review petitions seeking a court-monitored probe would be listed for regular hearing in due course.

In his separate verdict, Justice Joseph held that the provisions of the Right to Information Act would override the provisions of the Official Secrets Act, and no immunity or privilege could be claimed by the Centre.