After what was an intense round of arguments and counterarguments over the allegations of corruption the Rafale fighter jet deal, the Supreme Court Wednesday adjourned the hearing for 14 March. The court was hearing arguments related to the admissibility of new evidence, that came to fore in form of media reports, to review its 14 February judgment giving a clean chit to the government facing corruption allegations in the deal.
The hearing was peppered with some sensational claims from both sides. While advocate Prashant Bhushan, who is one of the petitioners against the Government of India in the case, accused the Centre of submitting false documents to the apex court, Attorney General KK Venugopal alleged that the documents being cited by Bhushan were “stolen from the defence ministry.”
Bhushan’s accusation was based on a report which was published in The Hindu on 8 February. It claimed that the defence ministry in 2015 had objected to “parallel discussions” held by the Prime Minister’s Office (PMO) during the negotiations for the purchase of 36 fighter jets from Dassault Aviation. The report was written by N Ram, who has served as the editor-in-chief of the newspaper and is currently the chairman of The Hindu Publishing Group.
Attorney General vs Bench
Venugopal said that the newspaper report, as well as Bhushan’s submissions to the court, is based on classified documents that were stolen from the Ministry of Defence. He further said that the government is contemplating launching legal action against the paper and the Opposition under the Official Secrets Act. Venugopal also told the court that the government intends to name the petitioners, incluiding Yashwant Sinha, Arun Shourie and Bhushan in the FIR.
According to Live Law, the AG pointed out that the documents were marked as ‘Secret’.
“These documents were never intended to be in public domain,” he said, adding that national security is atstake.
Justice KM Joseph dismissed this claim, saying that even “stolen” documents can be relied upon if they are relevant. “If an act of corruption had been committed, are you really going to hide behind national security? We are astonished you aren’t referring to the law,” he told the attorney general.
Responding to this, the attorney general said that some issues are outside the purview of judicial review. “Do we have to come to the court to justify when we declare war, when we declare peace? Do we have to come and seek permission of the court every time?” CNN-News18 quoted him as saying.
“In this limited area concerning the defence of frontiers, would it not be appropriate for Your Lordships to exercise restraint. This is a matter by which Opposition is trying to destabilise the government,” Bar and Bench quoted Venugopal as saying. He added that Parliament should look into the deal as the Comptroller Auditor General’s report has been submitted to it.
The government also asserted that the newspaper’s source is important. “How did the petitioners get classified documents from the defence ministry?” Venugopal asked the bench. And despite follow up questions from the CJI as well as Justice Joseph regarding the admissibility of stolen documents, the AG maintained that the petition is liable to be dismissed and that the bench should not look into it.
To support his claim, he cited a 2004 judgment by Justice Arijit Pasayat, which said that illegally obtained evidence cannot be relied upon in a court of law, Live Law reported.
In response, the CJI told the AG, “If your submission is that petitioners have not come bona fide, then that is different. But your argument that the documents cannot be touched by the court at all is far stretched.” Bhushan also disagreed with the AG’s opinion.
Deeming Venugopal’s assertion ‘astounding’, Bhushan defended the use of “stolen” documents, citing the 2G scam case where a whistleblower gave him a diary entry of ex-CBI director Ranjit Sinha, and the court proceeded in the matter on the basis of the diary. He further read the judgment aloud to show that the AG’s current argument was discarded by the top court in the previous cases.
He also refuted the AG’s claim that the petitioners have not named sources, saying that he has revealed sources for all submissions barring one document which is from the defence ministry.
Meanwhile, outside courtroom, N Ram rubbished government’s objection. He told CNN-News18, “What we have published is for the public to read. I hope independent media will stand by what we have written. Allegations of stealing were made against those who stole it. Why should we pre-empt what is being heard in the court?”
Petitioners accuse Centre of perjury
Arguing why the court should review its 14 February order, Bhushan submitted that the top court did not consider the nature of relief sought by the petitioners. He said that the petitioners did not seek for the deal to be struck down, but only wanted an enquiry into the corruption allegations.
“There are a large number of serious errors of fact which the court relied upon while passing the (14 December) judgment. Those facts were presumably supplied to the court by Centre in sealed cover notes,” Bhushan submitted, adding that government officials should be hauled up for perjury for knowingly submitting wrong facts to the court.
Bhushan also said that critical facts on the fighter jet deal were “suppressed” which led to the court absolving the governemnt in its previous order.
“The Supreme Court would not have dismissed plea for an FIR and probe into the deal had there not been suppression of facts,” he said.
The top court had in its 14 December order dismissed all petitions demanding a probe into the deal, and has asserted that the pricing and decision-making process of the deal were not in doubt. The bench said, “We studied the materials carefully, interacted with the defence officials, we are satisfied with the decision-making process.”
What is the Rafale deal?
A government-to-government deal between France and India was inked on 23 September, 2016 to procure 36 fighter jets for €7.9 billion. This was unlike the deal that was struck by the UPA government to buy 126 Rafale jets — the NDA government’s deal was €246.11 million more expensive than the deal which UPA-I had struck due to lack of bank guarantees.
This has given rise to a longstanding war of words within the political sphere, with the Congress time and again accusing the Centre of corruption and of favouring certain private businesses.
The allegations against the BJP began just after the deal was signed, with Congress pointing out that the government has strayed from the original deal, and demanded that the details of the deal be made public. Alleging that the NDA’s revised deal with Dassault is at least three times more expensive than what the UPA government had negotiated in 2012, Congress leaders also accused the Modi-led government of causing losses to the public.
The Supreme Court was hearing a petition seeking a review of its 14 December, 2018, judgement in the controversial Rafale fighter jet deal. The plea for the recall of the judgmentwas filed by former finance minister Yashwant Sinha, journalist-turned-politician Arun Shourie and activist-lawyer Prashant Bhushan, who had filed the original petitions, and others.