'Every Single Sentence From Court Will Be Used By Opposition For Destabilizing The Govt': AG [Rafale Courtroom Exchange]

Relying on section 8(1)(a) of the RTI Act, Attorney General K. K. Venugopal advanced that the Indian Negotiating Team's note-files on Rafale could not have been released in the public domain in view of the Secrecy Agreement with the French government. The said provision 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, relation with foreign State or lead to incitement of an offence. It may be recalled that As the bench was rising for lunch, Advocate Prashant Bhushan had argued that the RTI Act overrules the Official Secrets Act and that under section 8(2) of the former, all notings of a like nature (as indicated in its section 8(1)(i)) have to be disclosed. "This is a Ministry of Defence document which is marked secret. The whole of it is part of the purchase! The Defence purchase documentation could not have been placed in public domain!", continued the AG. He referred to the application for perjury as moved by the petitioners, which quoted excerpts from the aforesaid note on a "parallel discussion by the PMO" which "weakened the negotiating position of the MoD" and in which the officials of the PMO not part of the INT were requested "to refrain from having parallel parleys". Mr. Venugopal contended that it has been subsequently conceded that "The PMO and the French President's Office are Monitoring the progress of the issue", that this initial note was an "Overreaction" and that "the defence secretary may resolve the matter with the private secretary to the PMO". The AG urged passionately, "This is published in a newspaper report. He picks it up and again communicates it to the whole world. Look at the damage which is done. We started the process in 2000, the RPF was issued in 2007, then we narrowed down to Rafale and after negotiations, we finally came to a conclusion. Then We restarted the process. In June, 2018, we decided to withdraw original RPF...We have seen in recent history how far we are vulnerable. Other countries are using F-16s. This is very urgent...some fresh negotiations started. The deal was for two squadrons in flyaway condition, the first to be delivered in September this year. 52 pilots are to be sent to France for training. They shall undergo at least 2-3 months of training before they can even touch those jets. We are trying to protect the security of the country. And What is being attacked? That we won't buy this?! All countries in the world will know that the court is ordering CBI inquiry into the arrangement? Would Your Lordships know how many planes we have today that can compete against the F-16?...We have started the process for 110 more planes. Should we restart?" When Chief Justice Ranjan Gogoi asked him to confine his submissions on the limited purpose of the admissibility of the file notings, he admitted that he had got carried away. "The question is not of national security but of the prayer of the petitioners. Are you saying under the shelter of national security, none of that should be seen?", quizzed Justice K. M. Joseph. "With great respect, some things are not for court to see. Would Your Lordships examine any treaty we entered into on an allegation of favouritism and direct a CBI inquiry to investigate any corruption?...The appointment of ambassadors?...Should we come to this court every time a war is declared? In few recent instances, we have declared peace and said we will not proceed...these are instances beyond the court's scrutiny..." When Justice Joseph pressed in regard to the law of the country being broken by a corrupt process, the AG argued, "if a man comes to the court with unclean hands, will you still entertain him? Find out the source (from where the notings being relied on by the petitioners, as published in the Hindu, were procured)? If the source is not known, how would we know who in the defence ministry parted with it? A Retired officer or a present officer?" "The material may be privileged in terms of section 123 of the Evidence Act but even stolen evidence can be looked into if it is relevant. The source does not matter under the Evidence Act. You can't shut out evidence because it was illegally procured. That is the law in the USA, not here", observed Justice Joseph. "Even in case of an illegal search, the source is known. We know the material was obtained from a particular home or room. We know that it was in the possession of a particular person. Do you know the source of ANI or the Hindu?", posed the AG in response. He placed reliance on a judgment where the apex court suggested the course of action in respect of PILs to which official documents are annexed without even indicating as to how the petitioner came to possess them- "In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying...

'Every Single Sentence From Court Will Be Used By Opposition For Destabilizing The Govt': AG [Rafale Courtroom Exchange]

MEHAL JAIN

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