Lawyer Prashant Bhushan, who has sought an inquiry into the Rafale jet deal, submitted before the Supreme Court on Thursday that it is settled law that a court should not be concerned about how a document is obtained if it happens to be relevant evidence, Live Law reported. He said the objections raised by the Centre against his petition were mala fide.
After hearing the Centre and the petitioners, the Supreme Court on Thursday reserved its verdict on the government’s argument that the pleas are not maintainable. The government has claimed that the petitions should be dismissed as they are based on secret official files, publishing of which is illegal and a threat to security. The court said it will deal with this objection first, before proceeding with the review pleas.
Bhushan, along with other petitioners, had filed a plea to seek the inquiry last year, but the court dismissed the demand in December 2018. They filed a review petition, which cited new documents revealed by the media in February. The court first heard the review pleas on March 6, when the government claimed the files were “stolen” from the Defence Ministry.
On Thursday, Attorney General KK Venugopal told the court that such privileged documents cannot be published without the government’s permission, and said they should be removed from the court’s records. The disclosure of such details is exempted even by the Right to Information Act, he said, also citing Section 123 of the Indian Evidence Act, which prohibits evidence based on unpublished state records. The documents relate to national security, which supersedes everything, Venugopal said.
Justice KM Joseph intervened and said the Right to Information Act had “intended to bring a revolution, let us not go back”, Bar and Bench reported. He pointed out that the Act said even intelligence and security establishments were bound to give information in case of “corruption and human rights violations”. He said the Act had an overriding effect on the Official Secrets Act.
Chief Justice Ranjan Gogoi and Justice SK Kaul were also on the bench.
Bhushan began presenting his submissions after this, and claimed that the documents were already in public domain, and the claim of privilege that applies to secret files is available only to unpublished documents. “The primary concern of the government is not national security, but the protection of government officials who have interfered with the negotiation process in the Rafale deal,” Bhushan alleged.
Bhushan said that the government had itself leaked the documents to “friendly media” in the recent past. This was an apparent reference to a report published by ANI news agency in February, with details of a Defence Ministry note that had not been included in an unfavourable report about the same note published by The Hindu hours earlier.
Bhushan said that provisions of the RTI Act say public interest outweighs other things, and no privilege can be claimed except for documents which pertain to intelligence agencies, PTI reported.
On Wednesday, the Centre had filed an affidavit in the court, alleging that the petitioners had compromised national security by presenting secret official documents before the Supreme Court without the government’s permission. The Bharatiya Janata Party-led government said the documents are now available to the “enemy/our adversaries” because the petition has been circulated widely.
The Hindu’s reports in February were based on government documents accessed by the newspaper, which have also been cited by the petitioners Yashwant Sinha, Arun Shourie and Prashant Bhushan.