In addition, Prashant Bhushan and AG KK Venugopal got into a disagreement about the admissibility of certain documents. Earlier this year, The Hindu published a series of notes made by 3 of the Rafale negotiating team, which imply that the Prime Minister's Office interfered in the negotiation process. AG KK Venugopal submitted that these notes had been stolen from the Defence Ministry. Prashant Bhushan argued that the Court could nevertheless admit documents, given the provisions of the Right to Information Act, 2005.
The Bench re-assembled after lunch at 2.26 PM. The Bench primarily heard review petitioner Prashant Bhushan and Attorney General KK Venugopal.
First, Prashant Bhushan began by insisting that the Court take note of the documents written by the three negotiation team members. He said that this ought to be done even if the Centre were to initiate criminal proceedings under the Official Secrets Act, 1923 (OSA).
Further, Prashant Bhushan disapproved of the Attorney General's submission that criminal proceedings will be initiated against the petitioners. He said that this amounted to a threat against the petitioners, which is criminal contempt of Court.
Next, CJI Gogoi stated that the Bench would not hear MP Sanjay Singh's counsel Sanjay Hegde. MP Sanjay Singh also had submitted a review petition. CJI Gogoi noted that MP Singh had publicly commented on both the Rafale case and the Alok Verma case (CBI) in an objectionable manner. He said that the Court is considering the proper course of actions to take against the derogatory remarks made by MP Singh (likely contempt of court).
AG KK Venugopal's arguments
AG KK Venugopal began by raising an objection to Prashant Bhushan's argument regarding the RTI overriding the Official Secrets Act. Bhushan had argued that the provision of the RTI allow for the documents to exist in the public domain. AG KK Venugopal submitted that official "file notings" pertaining to national security matters cannot be brought into the public domain.
Further, KK Venugopal submitted that the official file notings had the word "secret" in it. He alleged that The Hindu cropped this out in its article, where it first published the document. He referred to the Official Secrets Act to demonstrate that the publication of a file noting, wherein the text "secret" is removed, is in violation of the Act.
After this, KK Venugopal proceeded to discuss how a CBI inquiry into the deal could hamper national security. He referred to the recent Pulwama related incidents, specifically Pakistan's alleged use of F16s in an aerial confrontation between India and Pakistan on 27th February.
CJI Gogoi remarked that the Attorney General should confine his submissions to objections pertaining to the maintainability of the review.
Returning to the admissibility of the file notings, Justice KM Joseph asked the Attorney General whether his submission was that the Court could not take note of them at all. Justice Joseph remarked that even if the evidence was illegally obtained, the relevant question in the context of the maintainability of the review, was not with regards to national security.
Further Justice KM Joseph stated that the AG cannot ask the Court not to consider the file notings. He stated that illegally obtained evidence can be admissible. However, he recognised that the Government can seek the disclosure of the source that leaked the evidence, before the Court takes it on record.
In response, the Attorney General submitted that "certain issues are beyond the scope of judicial review". He emphasised that the Government does not have to seek the permission of the Court on this matter.
Then KK Venugopal cited a 2004 Supreme Court judgment: "petition relying on evidence that has been obtained illegally liable to be dismissed".
Once again, AG KK Venugopal criticised the petitioners, specifically Prashant Bhushan. He said, "the petitioners have approached the Court with unclean hands". He noted that the publication of the secret notings violated Sections 3 and 5 of the OSA. He emphasised that the leaked documents can only be used as evidence before the Court, once their source is revealed.
Next, AG KK Venugopal responded to the CJI Gogoi's earlier question regarding the steps the Government was taking to address the leak. He said that no FIR had been filed because the names of the petitioners would also have to be included. He said that the petitioners made the file notings public and thus participated in a criminal act.
Finally, he called for the review petition to be dismissed on the ground that is based on a criminal act.
At this point, CJI Gogoi asked the AG: "Is your submission that the petitioners have not approached the Court bona fide or that the documents relied on were obtained illegally and cannot be looked into by the Court?" He emphasised that the Bench wanted to decide whether the file notings are admissible.
Attorney General KK Venugopal argued that the documents should not be admissible, as they are the subject matter of criminality.
In response, Justice KM Joseph referred to the Bofors scam (where corruption was alleged) and asked the AG whether the criminal courts should not look at leaked documents that provide evidence of corruption.
Justice SK Kaul noted that document procured illegally must be looked at with suspicion. However, he noted that there is likely no legal basis to argue that the Court cannot go into them at all.
In conclusion, AG KK Venugopal emphasised once again to the Bench that the case pertained to national defence and that it was appropriate for the Court to exercise restraint. He stressed that the actions of the Court could be politicized to destabilize the government.
Remarking on the Comptroller and Auditor General's report, he stated that it has been placed before the Parliament, which will look into the matter.
Prashant Bhushan's response
Next, Prashant Bhushan countered KK Venguopal's argument that the Court cannot look into the leaked documents at all, relying on a series of past Supreme Court cases. He referred to the 2G scam case, where the Supreme Court had ordered a probe by relying on documents provided by whistleblowers. Further, he cited various coal scam cases, where the disclosure of CBI notes had been contested, yet the Court nevertheless allowed the disclosure of the notes, citing public interest. Bhushan emphasised that in the latter, the government had threatened him with prosecution.
Further, Bhushan submitted that if an offence of corruption is alleged, the relevant investigation agency must carry out an investigation. He noted that even if nothing is expected to come to the surface, the agency must carry out an investigation and file a closure report.
CJI Gogoi stated that if the Court were to take note of the documents, they would also have to decide whether they are relevant. He requested Bhushan to confine himself to responding to the AG's arguments.
Prashant Bhushan contested the AG's claim that the sources of the documents were unknown. He submitted that they have been procured through the Hindu and ANI.
Finally, Prashant Bhushan noted that even if the Court did not admit the file notings, that it would have no major effect on the case.
The last counsel to present arguments was Arun Shourie. He submitted arguments on behalf of the review petitioners. He emphasised that the documents illustrate how critical evidence was suppressed. Further, he countered the claim that the documents were not in the public domain. He asked, if the documents are available to the public in a newspaper, why can they not be available to the Court?
The Bench listed the matter for 14th March 2019. The Minister of Defence will file an affidavit tomorrow (7th) stating that the documents were stolen.