The hearing of Rafale Jet deal's review petitions began amidst high drama in the Supreme Court on Wednesday.
The Centre claimed that the crucial documents on Rafale deal pricing, procured by certain media houses and petitioners, were stolen from the Defence Ministry and warned that those communicating its details stand to be imprisoned under the Official Secrets Act (OSA).
It stopped even the top court from looking into the notes from the 'secret file' produced in the review petition by petitioners — advocate Prashant Bhushan and former union ministers Yashwant Sinha and Arun Shourie.
Attorney General (A-G) KK Venugopal said that defence deals should not be reviewed by courts as a manner of routine administrative decisions since they pertain to national security and integrity.
Given how the nation is at war with its neighbour, exhibited by the recent air strikes by both sides, Venugopal said that India desperately needs to boost its air armoury with sophisticated Rafale jets to counter Pakistan's F-16s. He said that two squadrons (36 jets) in flyway condition are on their way and will be delivered by French manufacturer Dassault Aviation by September 2019.
The submissions left the Bench comprising Chief Justice Ranjan Gogoi, Justices SK Kaul and KM Joseph perplexed. "Are you suggesting we should not read a word of this document," it asked.
The Bench also asked that if the genuineness of a piece of stolen evidence is established, does the document still become 'non est' (not existing) and cannot be examined by courts.
Also, since details from the file got published on February 8, the Bench wondered why no FIR for theft or under OSA had been lodged.
The Bench cited the Bofors scam to illustrate its point: "If there is an allegation of wrongdoing, will the criminal court not have the benefit of reading the documents that show culpability of the accused? In an open system, should we shut documentary evidence?" The Court cited cases where they've doubted a petitioner's intention but appreciated the cause raised by him or her. In such cases, it appoints an amicus curiae to pursue the case.
"All this may be true," said Venugopal, "for cases involving the environment, tenders, etc. But when it comes to purchasing planes that relate to the security of the country and our survival, it will be appropriate for courts to be an observer but not play an active part. Any sentence falling from the court can destabilize the government as the whole issue will be converted through courts to condemn a particular leadership or party."
The A-G insisted that until the source document is not disclosed, the evidence will have no relevance. Arguments will continue on March 14.
Courtroom Drama
Top court was hearing deal’s review petitions
- Centre says files noting Rafale pricing stolen from Defence Ministry. Probe to locate culprit is underway.
- Till source is disclosed, illegally procured evidence cannot be looked into by court
- Since its top-secret document, anyone publishing or communicating it can be charged under Official Secrets Act.
- Review petition proceeding will hurt Rafale deal as 36 jets will arrive by Sept 2019
- Defence deals should not be touched by courts, as unlike routine administrative decisions these concern nation’s security & integrity
- Centre said that in no other country do courts examine defence deals in such a manner. ‘We are setting a wrong precedent,’ it said.
- Can national security be a cover for corruption? the top court wondered
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