india

Updated: Mar 07, 2019 09:26 IST

Brandishing the British-era Official Secrets Act, the government’s top legal officer on Wednesday demanded that the Supreme Court turn down petitions seeking a review of its own December verdict rejecting a probe of the Rafale jet fighter deal, saying the petitioners’ case rested on stolen papers acquired from “present or former employees” of the defence ministry.

Arguing for the National Democratic Alliance (NDA) government, attorney general KK Venugopal said at an open court hearing that the “documents relied on by the petitioners in their review petitions were stolen from the ministry and should not be relied on”.

“It’s a criminal act on the part of petitioners to bring these documents with them. They have come with unclean hands,” Venugopal said. “Defence is the most important matter of state and national security. They have been illegally obtained and the source is not disclosed by the petitioners. It’s a privileged document. These documents have made the cost of weapons public and has been taken from notes and has been put in the petition.”

Also read: ‘Without Rafale, how can we resist F-16s’: Centre to Supreme Court

The court questioned the attorney general’s proposition on stolen documents.

Justice KM Jospeh, part of the bench hearing the case, said, “There were allegations of corruption in the Bofors [gun deal of 1986] case. Now will you say the same thing that the criminal court should not look into any such document in the case? Here we have an open system. Are you going to take shelter under national security when the allegation is of grave crime or corruption?”

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Justice SK Kaul, too, deflected the attorney’s argument, saying if the document had been stolen the government should put its house in order. “It is one thing to say that these documents must be looked at with suspicion. But to say that we cannot even look at those documents may not be correct submission in law.”

Chief Justice of India Gogoi said: “We can understand the government saying that the petitioners have come with unclean hands and that they have got the documents through doubtful sources. But it is another thing to say that the court cannot consider them at all and that they are untouchable.”

Former Union ministers Yashwant Sinha and Arun Shourie, and lawyer Prashant Bhushan have filed a petition seeking a review of the Supreme Court’s December verdict, which found that there was “no occasion to doubt” the decision -making process behind the 2016 purchase of 36 jet fighters from Dassault Aviation of France in a ₹59,000 crore deal.

The petition says that the information that came into the public domain after the court’s judgment proved that the government had “misled” the court on various counts.

Venugopal told the three-judge bench that the government may invoke the Official Secrets Act, a colonial era law that makes possession of secret official documents punishable with three to 14 years of imprisonment. He said it also plans to prosecute the newspapers that published the documents along with Bhushan, who has relied on them.

One document is an eight-page dissent note written by three domain experts in the Indian negotiating team that has already been published by The Hindu newspaper.

Advocate Bhushan countered the attorney general’s argument, saying that in past he had relied on documents given to him by whistle-blowers in the case related to alleged irregularities in the 2008 allocation of 2G telecom spectrum and licences and also the entry register at the residence of former Central Bureau of Investigation director Ranjit Sinha, and the court had relied on these documents.

The Centre also urged the Supreme Court to “exercise restraint” in its observations on the procurement of Rafale fighter jets, underlining that every statement by the top court will be used to target either the government or the Opposition.

“Would it be appropriate for the court to decide an issue which will be used for political purpose? Any single sentence that falls from the court will destabilise either the government or the Opposition. All I am saying is exercise restraint,” the attorney general said.

The arguments in the case remained inconclusive on Wednesday and will resume on March 14. The court has also asked the Centre to file an affidavit detailing what action it had taken to deal with the alleged theft of the documents,

The Hindu Publishing Group chairman N Ram told PTI that the newspaper had published documents related to the Rafale deal in public interest. “You may call it stolen documents... we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources,” he was quoted as saying.

The NDA government’s decision to enter the government-to-government deal with France to buy 36 Rafale warplanes made by Dassault was announced in April 2015, with an agreement signed a little over a year later. This replaced the previous United Progressive Alliance (UPA) regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by the state-owned Hindustan Aeronautics Ltd.

The deal has become controversial with the Opposition, led by the Congress, claiming that the price at which India is buying Rafale aircraft now is ₹1,670 crore for each, three times the ₹526 crore, the initial bid by the company when the UPA was trying to buy the aircraft. It has also claimed the previous deal included a technology transfer agreement with HAL.

The NDA has not disclosed details of the price, but the UPA deal, struck in 2012, was not a viable one, former defence minister Manohar Parrikar has previously said, implying that it would have never been closed and that, therefore, any comparison is moot. Indeed, the UPA was not able to close the deal until 2014, largely over discussions related to pricing of items not included in the initial bid.

The deal has also become controversial on account of the fact that one of the offset deals signed by Dassault is with the Reliance Group of Anil Ambani. The Congress claims the earlier deal was scrapped and a new one signed just to provide Ambani this opportunity for an offset deal. Both the government and Reliance have repeatedly denied this.