Special Correspondent – New Delhi

New Delhi, Mar 7: The central government dropped a bombshell on March 6 when it told the Supreme Court that documents pertaining to the controversial Rafale deal have been stolen. Attorney General K K Venugopal submitted before the three judge bench comprising Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph that the documents published by the Hindu and news agency ANI are stolen documents. English daily The Hindu’ had published an article on the pricing of the Rafale deal and he argued that stolen documents cannot be taken as evidence against the government.

Venugopal said that the documents were stolen from the Defence Ministry allegedly by present or former employees. He also said that a probe is on to find out who stole the sensitive documents. Defending the Rafale deal the Ministry of Defence told the Supreme Court that it would initiate criminal action against both the publications and also against the lawyer as the matter involves national security and is covered by the Official Secrets Act. When chief justice asked him what the government has done till now after the documents were first published on February 8, 2019, Venugopal apprised the bench that an internal probe was conducted regarding the alleged theft. He however, submitted that no FIR was filed because it requires the government has to file a FIR against the lawyer who is using it.

Responding to the government’s intent to use the Official Secrets Act, N Ram, Chairman of the Hindu Group who authored the reports on Rafale stated that nobody could get any information from the newspaper about confidential sources. He said “we are fully committed, absolutely committed to protect the confidentiality of our sources. The documents speak for themselves and the stories speak for themselves” he said.

The Supreme Court was hearing a review petition on March 6 submitted by advocate Prashant Bhushan and former ministers Arun Shourie and Yashwant Sinha. The lawyer Venugopal mentioned is none other than Prashant Bhushan who argued the case on behalf of himself and the other petitioners. They had submitted a petition to the Supreme Court seeking a review of the December 14, 2018 order that had dismissed all PILs which wanted a probe into the alleged irregularities in the Rafale deal. The petitioners even sought perjury charges against the government saying “the centre suppressed crucial facts when the Supreme Court decided to dismiss the PILs”.

When Venugopal put forth a preliminary objection saying the published reports by newspapers cannot be relied upon as evidence unless the source of the information is revealed the bench asked him whether the government intends taking shelter under and suppress information citing national security even if corruption is involved. One of the three judges Justice Joseph stated that stolen material can be relied upon as evidence provided it is relevant to the issue.

The Attorney General said “note filed cannot be subject of judicial process” as it is a matter of national security and hence is outside the purview of the Right to Information Act. He also stated that government “views and counterviews are expressed” in such matters and “then there may be a third view” and hence the thought process cannot be taken as final decision. “Only the final decision is subject to judicial review”, he argued.

However, his argument that stolen material cannot be used as evidence did not go down well with the judges. Venugopal even argued that the matter concerns national security and hence is beyond judicial scrutiny saying “do we have to come to the court and explain every time a war is declared”. Venugopal even asked whether the court should entertain a petitioner even if he comes with unclean hands. At this Justice Joseph stated “you have to state the law. You can’t say the court cannot rely on the evidence because it was obtained illegally”. Venugopal replied that such evidence can be used provided the source is revealed.

At this juncture Justice Joseph made a reference to the Bofors case and told Venugopal that there were allegations of corruption in Bofors similar to the Rafale deal and wanted to know from the Attorney General whether the same standards would apply to the Rafale deal. That is when Venugopal replied that in no other country Defence matter comes under the judicial review. “When it comes to the purchase of planes which are essential to our country’s security, then courts say can we look into the documents also because there are some allegations of wrongdoing, I say no… because whatever court says will be used politically… Due to the high respect that this court commands, any word from the court will be used for the purpose of destabilizing India,” he argued and then asked the court to exercise restraint.

Tracing the history of the deal Venugopal stated “… look at the damage which is done” and added while other countries had F-16s India was still left with MiG-21 and this underlined the urgent need for acquiring the Rafale. He was referring to the MiG-21 flown by Wing Commander Abhinandan Vardhaman who had shot down Pakistan’s F-16 during the recent showdown between India and Pakistan following the Pulwama attack.

Prashant Bhushan had criticized the CAG report on the Rafale purchase saying that it was for the first time that pricing details on the deal have been redacted from the report. On the source of the documents he used Bhushan said that bulk of the documents were from the publications like the Hindu, Caravan and The Indian Express. He also argued that he obtained the documents from a Whistleblower and further argued that Supreme Court has given judgement to protect whistleblowers. However the court said that contempt of court and other acts will not apply to whistleblowers.

The next hearing on the matter is scheduled for March 14, 2019.