Seeking to divert the focus of the Rafale case away from alleged corruption, Attorney General KK Venugopal on Wednesday argued before the Supreme Court that it cannot rely on “illegally obtained documents” to allow petitions for an investigation into the fighter aircraft deal.

In a claim that stunned the packed courtroom, Venugopal said the documents that The Hindu used for its recent stories on the Rafale deal – and which the petitioners seeking the investigation have cited – were stolen from the defence ministry. Since the newspaper possibly violated the Official Secrets Act by using these documents for its stories, the attorney general added, the court should not rely on these documents.

When the judges hearing the matter and opposing lawyers sought to question the logic of his claim, Venugopal resorted to fervent appeals for judicial restraint, invoking national security to claim the Rafale jets were crucial to fight India’s enemies.

Wednesday’s court proceedings show the Narendra Modi government is not only seeking to prevent judicial scrutiny of the aircraft deal, it also wants to keep the media from digging into the agreement by threatening action under the Official Secrets Act.

Flawed argument

On Wednesday, a bench of Justices Gogoi, Sanjay Kishan Kaul and KM Koseph started hearing petitions seeking a review of the top court’s December 2018 ruling against an investigation into the Rafale deal.

Arguing for the petitioners, Prashant Bhushan said the government gave misleading information to the court during last year’s Rafale proceedings, leading to dismissal of the petitions seeking an inquiry into the allegations of corruption. Indeed, the Centre had filed a plea for correction in the ruling, saying the bench had misinterpreted its submissions that a Comptroller and Auditor General of India report on the deal was placed before Parliament. It had only explained the procedure for providing such a report to Parliament, the government insisted. The report was eventually placed in Parliament in February.

Rather than counter the petitioners’ arguments, the Centre changed tack to go after The Hindu for publishing reports that showed the Rafale deal caused losses to the national exchequer. The reports, written by N Ram, also revealed that the defence ministry’s Rafale deal negotiating team raised concerns about the Prime Minister’s Office conducting parallel negotiations.

Venugopal claimed these reports were based on secret documents stolen from the defence ministry, possibly by former employees. The court cannot rely on illegally obtained documents to proceed in the matter, he argued, adding that accessing the documents was a criminal violation of the Official Secrets Act.

This argument is deeply flawed. The Supreme Court has declared in multiple cases that illegally obtained evidence can be admitted if it is relevant to doing justice in a particular matter. Just because evidence is illegally obtained, its authenticity and relevance to a case is not obliterated unless it is proved that the evidence itself is false.

This logic applies to the Rafale case as well. Even if it is conceded that the newspaper accessed the documents illegally, the fact is they exist and are relevant to determining if allegations of corruption in the deal need to be investigated.

The Official Secrets Act mandates punishment for illegally accessing secret official documents. This in no way affects the veracity of the documents.

Holding that illegally obtained evidence cannot be admitted under any circumstance could have disastrous consequences. Consider a case in which the death penalty is awarded. If, at a later stage, the convict is able to prove their innocence through an illegally obtained but authentic document, the courts cannot say they would ignore such evidence and send the person to the gallows. For it would adversely affect the constitutional right to life.

Responding to the attorney general’s submission, Joseph said even stolen evidence can be looked into by the court. “It is well settled under the Evidence Act,” he noted.

But Venugopal was in no mood to relent, leading to a protracted exchange with the bench. At this point, Gogoi wondered aloud if the court should ignore the plea of an accused to establish their alibi on the basis of a stolen document.

Cover of national security

Seeing the court keep at it on the admissibility of stolen evidence, Venugopal invoked national security and asked the bench to exercise restraint. He said buying the Rafale fighter jets was essential for India to fight its enemies. How else would the Indian military forces be able to fight F-16 jets, he asked, alluding to the recent use of the advanced fighter aircraft by the Pakistan Air Force when it breached the Line of Control.

Venugopal added that defence deals concerned the very security of the country. “In future, foreign countries will think twice because they will think defence purchases will have to go through parliament, TV channels, newspapers and then the judiciary,” he said.

When the court asked if the government can take cover under national security if a criminal act such as corruption is committed, Venugopal repeated that in matters of defence, the judiciary should exercise restraint.

The Centre also said the Rafale deal was being used by the Opposition to “destabilise the government”.

In response, Bhushan said the same arguments being made by the attorney general now were discarded by the court while hearing petitions on the 2G and coal scams. Fellow petitioner and former minister Arun Shourie added that anti-corruption clauses in the deal were omitted with retrospective effect and defence ministry’s objections were overruled.

Also read:

The Modi Years: Why is the flagship Rafale deal still controversial?

Anil Ambani tip-off and dropped corruption clauses: What the latest Rafale exposes tell us

Rafale deal: Did Narendra Modi’s PMO interfere with negotiations over the jets?

The five obfuscations of the Rafale deal – and four simple questions the Modi government must answer