"There Was A Mistake, Certain Pages Of CAG Report Omitted From The Copies Given To Your Lordships": AG Tells SC [Rafale Courtroom Exchange]

"There has been a mistake. In the copies of the CAG report given to Your Lordships, certain pages had been omitted. It is important because why the price was redacted from the report is mentioned in it. Any disclosure of the price would violate the IGA (Inter-governmental Agreement between India and France)", said Attorney General K. K. Venugopal at outset as the hearing on the review petitions against the December, 2018 Rafale verdict began in the Supreme Court on Thursday. As the AG proceeded to argue the Centre's affidavit claiming privilege under section 123 of the Evidence Act in respect of certain file-noting of the Indian Negotiating Team as sought to be relied upon by the petitioners, Justice S. K. Kaul inquired, "What privilege are you claiming? They have already produced it in the court" "According to us, they have produced it by stealing it and therefore, it cannot be called into question in court. We can claim privilege only to get rid of it...", replied the AG. He drew the bench's attention to the said section 123 prohibiting one from giving any evidence which is derived from unpublished official records pertaining to the affairs of the State, and Article 19(2) which permits the freedom of speech to be curtailed in the interest of the sovereignty and integrity of India, the security of the State and friendly relations with foreign States. Besides, he relied on section 8(1)(a) of the RTI Act, which excludes from the obligation of disclosure Any information which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, or its relation with a foreign State. He also Indicated sections 3 and 5 of the Official Secrets Act (OSA) which prescribe the punishments for obtaining and communicating any "secret official code or password, or any sketch, plan, model, article or note or other document or information". At this point, Justice K. M. Joseph pointed out that by virtue its section 22, the RTI Act is given an overriding effect over the OSA, and that while its section 24(1) excludes from its purview certain intelligence and security organisations specified in the Second Schedule to the Act (like the Intelligence Bureau, the RAW, the BSF and the CRPF ), the exemption would not apply where the information sought pertains to the allegations of corruption and human rights violations. "If the information asked for is in respect of corruption, then you are bound to give it even in cases where information is not usually given...When the Parliament has passed the RTI Act, it has brought about a complete revolution! It has put us ahead of Australia and the US! Let us not go back! Now Article 74(2) remains the only area which cannot be inquired into...", observed the judge. "if I am sitting in the government's seat, I may agree to not go back. But this is a statute...so far as 24 is concerned, the exception has to be confined to the scope of the exception...the security of the state supersedes everything else through the protection under 19(2). The RTI Act says give this information, You have an exception saying don't give this, And an exception to the exception saying that, in case of corruption, give it. But here corruption is not contemplated to be the subject of the RTI application. Your Lordships would be adding to the Schedule that way...", submitted the top law officer. "In 2009, Your own government has said that file notings have to be shown unless covered by section 8. After S. P. Gupta's case, notings have lost their sanctity", weighed in Justice Joseph. In his turn, Advocate and petitioner-in-person Prashant Bhushan regarded the Centre's preliminary objection as malafide-"The AG said that these documents belong to a class that he calls defence secrets, which affect the security of the country and which can't be relied upon, examined or even looked at by the court. He further said that these have been obtained in violation of the OSA. Earlier, He said they were stolen and now, he says they are unauthorised photocopies. Thirdly, he said that the source where these documents were procured from has not been disclosed. And now he is claiming privilege...The intention of the objection is not to prevent harm to national security. Because virtually all these documents have already been published and are available in public domain since a very long time. Hence, that their consideration by the court in a judicial proceeding would lead to some harm is an untenable argument" "In the constitution bench judgment in S. P. Gupta, it was held that the test to determine whether a claim of privilege should be allowed is only a test of public interest. The RTI Act also provides in its Section 8(2) that notwithstanding the OSA, access to information may be allowed if public interest outweighs the harm to the protected interests. Section 123 (of Evidence Act) refers to unpublished documents. How can privilege be claimed where ...

"There Was A Mistake, Certain Pages Of CAG Report Omitted From The Copies Given To Your Lordships": AG Tells SC [Rafale Courtroom Exchange]

MEHAL JAIN

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