india

Updated: Mar 07, 2019 08:00 IST

Leaked papers, or documents that fell under the purview of the British-era Official Secrets Act, did not come in the way of the government ordering action on information provided by whistle-blowers in cases ranging from the 1980s Bofors gun deal to the coal block allocations in the 2000s to the HSBC Swiss bank list in the early 2010s.

Attorney general KK Venugopal said in the Supreme Court on Wednesday that the government intended to invoke the Act against newspapers that published documents on the Rafale jet fighter deal, and petitioner Prashant Bhushan who cited them in seeking a review of the court’s December verdict clearing the transaction.

Venugopal said the papers, pertaining to national security, were stolen from the defence ministry.

Yet, the sources of documents or information have not mattered in the past so long as such leaks were made in public interest or to bring to light irregularities in government transactions, and hadn’t been obtained for the purpose of espionage, legal experts said.

In one case related to alleged irregularities in coal block allocations that roiled the previous United Progressive Alliance (UPA) government, a three-member bench of the Supreme Court observed on 14 May, 2015 : “...if somebody accesses documents that ought to be carefully maintained by the CBI [Central Bureau of Investigation], it is difficult to find fault with such a whistle-blower particularly when his or her action is in public interest”.

The petitioner in the case submitted diary entries of visitors to then CBI director Ranjit Sinha’s residence to show that Sinha received executives from some companies that were under investigation in the case.

“It is another matter, if the whistle-blower uses the documents for a purpose that is outrageous or that may damage the public interest,” the bench said. It found that the whistle-blower acted in the public interest.

Commenting on the attorney general’s argument in the apex court on the Rafale deal on Wednesday, senior advocate Vikas Singh said: “I think that they (AG) are diverting from the main issue. You have to come to the core issue. Either you deny the document or don’t deny the document. Just because it is a stolen document, it does not mean that you would not answer on it.”

“That can be a separate issue which can be taken up by filing a case under the Official Secrets Act. But that will not disentitle the SC to rely on these documents to grant a proper hearing in the matter. Ultimately there is a duty of the government also to present the correct facts before the court. If you say that the documents have been stolen, then you (Centre) are also committing perjury by giving the wrong facts to the court,” he said.

Experts citied past examples of both the government and investigative agencies probing alleged corruption cases without going after the whistle-blowers who exposed them.

One such case was when the French government passed on detailed accounts of over 600 Indians allegedly keeping unaccounted-for money in HSBC’s Geneva branch. The information was sourced from an IT executive, Herve Falciani, who played the whistle-blower.

After the National Democratic Alliance (NDA) government came to power in 2014, it started a special investigation team to investigate money kept in overseas bank accounts by Indians, based on information that HSBC said was stolen from the Swiss branch.

Another such case was the Bofors deal, alleged irregularities in which came to light after a Swedish radio channel in April 1987 reported that bribes were paid by the company to secure a deal to supply field howitzers to the Indian army.

The informant was a whistle-blower, who was identified after 25 years as Sten Lindstrom, the former chief of the Swedish police.

The row over the Rs1,437-crore deal, signed in March 1986, led to political upheaval in India and played a role in the Congress losing the 1989 general elections.

Based on the leaked information, the government asked the CBI to file a first information report (FIR) in January 1990 and probe the deal.

Fifteen years later, in May 2005, the Delhi high court quashed all charges against those accused in the case.In November 2018, the Supreme Court dismissed an appeal by the CBI challenging the 2005 order of the Delhi high court.