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 on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs", the judge had reflected on that occasion.
"The proposition you are advancing is that if the document is a patent document, then regardless of whether it is relevant, it is not admissible? The court can't look into it? You are claiming privilege for that document?", the Chief Justice clarified.
The AG Indicated sections 3(1)(c) 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".
"The action of the petitioners to produce the document before the court is a criminal act under the OSA. The question is of examining this petition, which is based on a criminal act, by ignoring this criminality. This will be setting a precedent for documents to be illegally obtained and the source not being disclosed. Are Your Lordships going to hear this when we need these 36 jets urgently and this everyday delay is holding things up?", he put forth.
Asserting that there is no restraint on anybody for effectuating the deal, the Chief Justice asked the AG about a hypothetical situation where a person is set-up in a criminal case and in order to prove his innocence, he steals some documents from official custody. "Should the court not look into that document?", asked the Chief Justice.
"There, the source is known! Who could have been in possession of the document is established! The next stage would be to see if the document is relevant! That's the law in India! Relevancy doesn't matter till the source is established...they (the petitioners) should have first asked where the document that they intended to use had come from!", responded Mr. Venugopal.
He reiterated the instance where this court had commented on the claim of having found important official documents on the road. "That is a judge's opinion. But is there a difference in the law on this point? We are required to enunciate the law. If the document comes from an unknown source and has been obtained in a wrong manner, it should not be looked into? If there is an allegation of commission of a criminal offence under section 3 or 5, Does the document become non-est or nil for the court?", questioned the Chief Justice.
"The criminality having been established, The court will not look into the document, which it anyway should not examine because it relates to defence and should never have been in the public domain", replied the AG.
"Like in the Bofors controversy, there is an allegation of wrongdoing. Are we going to say that the criminal court should not see a document?", inquired Justice Joseph.
"The kind of open system we have in India exists in no other country, where a defence purchase is the subject-matter of the court. The Petitioners brought this in and Your Lordships are going into it as if it is an administrative law matter", remarked the top law officer.
"Don't forget we dismissed it (the original petitions)! We can understand that argument! They have not come bonafide! One coming to the court must be bonafide. The document is of a doubtful character, the source, how they obtained it, placing it in the public domain and making it part of the petition- all this is not bonafide. And what is not bonafide must not be entertained. But as for the law to state that any such document is untouchable would be laying down the law much higher than necessary", weighed in Chief Justice Gogoi.
"We may not utilise it, but having come before us, can you ask is to not read it? To cut it out at the threshold?", concurred Justice S. K. Kaul.
"If the petitioner is misusing the court and the judicial process, the court may not hear him. But there are instances where the court says that the cause is good and that we will hear the matter through an Amicus and not the petitioner", added the Chief Justice.
"If Your Lordships are satisfied that there is something murky about the award of the contract, then you may appoint an amicus...We want to defence ourselves with superior means. If, in such a case, the court says that the documents may be prohibited under the OSA but there is wrongdoing so we must look into it, I would say 'no'", repeated Mr. Venugopal.
"The amount of attacks there have been in the Parliament. The whole transaction has been thrashed day after day after day. The TV Channels have also thrashed it out, calling army officers or air force officers and asking the same 5-6 questions- this should have been done, that should have been done, that plane is superior...The Parliament speaks for the people and has its own machinery. But it may not be appropriate for the judiciary to intervene. The court may be an observer. Because of the high prestige of this institution, Every single sentence from you will be used by the opposition for destabilizing the government ...To Please exercise restraint in this case, would be my submission", he continued.
Finally, the AG ventured arguments on the ground of privilege. Referring to a 1987 decision of the Supreme Court and another of 2010, he endeavoured to affirm that a government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned, and that The expression of conflicting opinions in internal files are for the use of the department and not for outside exposure or for publicity. Also, the noting recorded in the files cannot be made the basis for a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous considerations.
Objecting to the AG's statement that the government shall initiate prosecution against the newspapers and the petitioners, Mr. Bhushan alleged that it amounts to criminal intimidation- "my review petition was filed on January 2. The perjury application was filed on February 15. If they had to take this objection, they should have done so a month ago so that we could formally respond. For the AG to say he will prosecute the papers and the petitioners also is an attempt to intimidate the petitioners against assisting the court and bringing The correct facts to the court, facts which are already in public domain! This in itself is criminal contempt of court!"
On Wednesday, the bench refused to hear petitioner Sanjay Singh, AAP Rajya Sabha member, on account of certain statements made by him about this institution which the court found "very, very derogatory". "we will hear you in regard to your statements on Rafale and the CBI and then we will decide what more to do with you", Chief Justice Gogoi said to Senior Counsel Sanjay Hegde who appeared for Singh.