Day 2 Review Arguments

Rafale Fighter Jet Deal

March 14th 2019

Today, the Bench reserved order on the preliminary objections raised by the Central Government. The Central Government has objected to the admissibility of certain documents relied on by the review petitioners.


A Supreme Court Bench comprising Ranjan Gogoi CJI , Sanjay Kishan Kaul and KM Joseph JJ is hearing the petitions seeking a review of its December 14th 2018 judgment pertaining to the Government’s purchase of 36 Rafale Fighter Jets. In its judgment, the Court had declined the plea for a Court monitored investigation into the Rafale Deal, emphasizing that its powers of judicial review are limited in matters of national security.


Previous Hearing

On the previous date of hearing, the review petitioner Mr. Prashant Bhushan had submitted before the Court that there were four primary grounds on which the petitioners had sought a review of the 2018 judgement:

  1. the Court in its judgment did not deal with the main prayer of the petitioners, namely the registration of an FIR and a CBI investigation of the complaint
  2. the judgment relied on a large number of major factual errors
  3. there was a suppression of critical material evidence from the Court
  4. the judgment did not consider critical facts submitted by the petitioners


Further in the previous hearing, the Court had heard the Attorney General raise a preliminary objection to the maintainability of the review petitions. He had submitted that the file notings and documents that were relied upon by the petitioners were not admissible, on the grounds that they had been stolen and were secret documents critical to national security.


Today’s Hearing

In todays’ hearing, the Attorney General Mr KK Venugopal began by clarifying that when he had earlier said that the documents relied upon by the petitioners were procured illegally, he did not mean that they were stolen by the petitioners, but were photocopies of documents that had published without the prior permission of the State. Further he substantiated the submissions made by the Central government in its affidavit submitted between the previous and today’s hearing. He argued that the documents presented by the petitioners are privileged documents and cannot be considered as evidence as per Section 123 of the Indian Evidence Act. He further reiterated that the documents are also protected under the Official Secrets Act (OSA) and requested the Court to remove them from the record.

At this point, K M Joseph J questioned Mr Venugopal as to what effect the provisions of the Right to Information Act (RTI) would have in the present case. He stated that the RTI Act, Sections 22 and 24 in particular would override the provisions of the Official Secrets Act. Mr Venugopal submitted that as far as matters of national security were concerned, the State would be immune from the RTI provisions. He specified that the State would be exempted from disclosing documents as per the provisions of Section 8(1)(a) of the OSA. Joseph J however responded stating that in view of Section 24 of the RTI Act , even security and intelligence establishments are not exempted from disclosing information in relation to corruption and human rights violations.


Gogoi CJI asked the Attorney General whether he wanted to make any further submissions with respect his preliminary objections to the admissibility of the leaked documents. Mr. Venugopal submitted that he only requests that the  Court not look into the leaked documents, when deciding the maintainability of the review petitions.


Gogoi CJI then asked Mr Prashant Bhushan if he wanted to file a written response to the affidavit that had been submitted by the Government yesterday (13.03). Mr. Bhushan expressed that he sought to respond instead to the preliminary objections raised by the Attorney General. He supplied the Bench with a copy of a detailed note prepared by him in response to Mr. KK Venugopal’s objections.


Mr. Bhushan began by highlighting the three fold objections that had been raised by the Attorney General:

  1. The documents relied upon by the petitioners are a class of documents that refer to the security of the state and, hence, they cannot be used in court proceedings
  2. The documents cannot be examined because they have been procured illegally
  3. The petitioners have not disclosed the source of these documents


Mr. Bhushan went on to argue that the claim for privileges raised by the government in their affidavit was untenable as privilege could not be claimed over documents that were already in the public domain. He emphasised that the leaked documents had been published as early as February 2019 and some of the others had already been placed before this Court in the earlier proceedings in November 2018. Hence, he submitted that the leaked documents were in the public domain. He submitted that one could not maintanably argue that the Court should not examine documents in the public domain, on the ground that doing so would lead to extensive harm to national security.


Referring to the decision in S P Gupta v Union of India, Mr. Bhushan further argued that the test for determining whether to allow a claim for privileges was dependent on public interest. Specifically, he submitted that if admitting the documents was in the larger public interest, then they must be admitted. He emphasised that Section 123 of the Evidence Act refers to unpublished documents and hence it did not apply in the present case, given that the documents were already in the public domain.


Mr. Bhushan also argued that the objections were an after-thought and only an attempt to protect high ranking individuals that had interfered with the negotiations and proper procedure in the Rafale Deal. He made this argument by emphasising that up until now, the State had not made any attempt to repress the public distribution of the documents in question. He argued that the preliminary objection was itself malafide, citing the lack of action on the part of the Government in restraining the media from publishing the stolen documents as well as its failure to take any criminal action up until now. Further, he referred to the rejoinder affidavit filed by the petitioners in November, 2018 as well as the note filed by the Government in the same month when the petitions in the case were first being heard. He noted that, at the time, the State filed no objections to documents, such as Note 228 and other file notings, being place on the Court’s record.


Further, he argued that the Government could not tenably argue that the Court cannot look into any document pertaining to defence purchase agreements. He noted that the Government itself had placed on the Court’s record reports that referred to 10 defence purchase agreements, namely the report of the Comptroller and Auditor General (CAG).


Upon being requested by Gogoi CJI to confine himself to arguments against the Attorney General’s preliminary objections, Mr. Bhushan referred to the note prepared by him arguing that in the note dated 14.11.18 where the petitioners had submitted details of the unauthorised paralleled negotiations and other details were submitted but at that stage no objection was taken at that stage. He submitted that an objection to these, at this stage is malafide and a deviation from the issue at hand.


Next, Mr. Bhushan submitted that he does not have to disclose the source of the leaked documents. Recall that Mr. KK Venugopal had argued that the fact that the petitioners had failed to reveal their sources, made the leaked documents inadmissible. He referred to the orders passed by the Court in the 2G and Coal block cases, where the Court had accepted the visitors book registers of former CBI director Ranjit Sinha in evidence without insisting on revealing how they were obtained. He further referred to Section 15(2) & 15(3) of the Press Council Act, 1978 to emphasise that journalists cannot be compelled to reveal their sources.


On the issue of the admissibility of illegally procured or stolen documents, Mr. Bhushan submitted that it had been held by the Court on several occasions that if a document was relevant to decide a particular case, the manner in which it was procured was irrelevant. Mr. Bhushan also referred to the decision of the Supreme Court of the United States in the Pentagon Papers Case where the publication of documents pertaining to the Vietnam War was allowed by the Court. In conclusion, Mr. Bhushan submitted that none of the documents relied upon by the petitioners had to do with national security but only expose the violation of procedure in the Rafale deal.


Mr. Vikas Singh, counsel for Mr. Vineeth Dhanda also made brief submissions on the overriding effect of the Right To Information Act on Section 123 of the Indian Evidence Act. In particular, he stressed that the former relies on a broad definition of information.


Mr. Arun Shourie, one the review petitioners, concluded arguments for the day by submitting that by acknowledging that the documents in question were photocopies of official secret documents, the Attorney General had admitted that the same were genuine. He reiterated Mr. Bhushan’s submission that the objections were an afterthought since these documents had been a matter of public record when the stories were first carried by Caravan Magazine and The Wire.

The Bench reserved order on the preliminary objections raised by Attorney General KK Venugopal. In its order, it will rule on the admissibility of the documents relied on by the review petitioners.