New Delhi, March 14 : The Supreme Court on Thursday reserved its order on the government’s plea claiming privilege over documents filed by petitioners – former Finance Minister Yashwant Sinha, journalist-turned-politician Arun Shourie and activist-lawyer Prashant Bhushan – in connection with the Rafale case.
After an hour-long hearing, the bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph reserved the order on the plea which also sought removal of three “privileged” documents from the case records while the petitioners contended that the entire move was to prevent the court from considering these documents while deciding the issue.
The government, which had earlier termed the documents stolen but soon backtracked, also changed its stance, now calling them “unauthorisedly photocopied”.
Sinha, Shourie and Bhushan had annexed three documents with their two pleas – seeking the review of the court’s December 14, 2018 judgment giving clean chit to the government and an application alleging perjury against the government officials for misleading the court and suppressing material information relating to Rafale deal.
The Centre has contended that the disclosure of these documents, on which it is claiming privilege, have a bearing on national security and the combat capacity of the fighter jets.
Terming the Centre’s objections “mala fide”, Bhushan told the court that it was “not to prevent any harm to the security or defence of the country but to prevent the court from taking these documents into consideration while deciding the issue before it”.
Describing it as “untenable”, he, citing a number of judgments including one by the constitution bench, said that the “test whether the claim of privilege by the government should be allowed or not is whether it is in the public interest”.
He also cited the judgment of US Supreme Court which had allowed publication of the Pentagon Papers, on the Vietnam War, in public interest.
Referring to the Indian Evidence Act’s Section 123 that bars the use of “unpublished” privileged documents of the state as evidence, Bhushan said that the documents in question have come to light since November 18, 2018 when one of them was used by a newspaper.
He said that none of the three documents that they have annexed with the pleas have anything to do with national security as they are concerned with the violation of procedures.
Seeking the removal of the documents which were “unauthorisedly photocopied”, Attorney General K.K. Venugopal said that “the security of the state supersedes everything else”.
AS the AG stressed on the documents being privileged, Justice Joseph sought to know the process by which the government decides on invoking privilege.
“Is there a high-level inter-departmental call taken on this? Can’t the court even examine the documents to decide your claim of privilege?” he asked, referring to Section 24 of the RTI Act that, while insulating intelligence and security organisations, carves exception in the cases of corruption and human rights violations.
Describing the RTI Act as a “revolution” – a statute that was ahead of ones in the US, UK and Australia, Justice Joseph said, “You don’t go back on what Parliament has passed.”
In contrast to March 6 hearing when the documents relating to Rafale deal annexed with the petitions were described as “stolen”, a position that was backtracked within 48 hours, AG Venugopal on Thursday said that that the documents were “unauthorisedly photocopied” which was a theft.
At the outset of the hearing, he told the bench that the copy of the CAG report submitted to the court was not having its first three pages. Describing it as an error, he gave the three sets of three pages to the bench.
In an apparent relief to Venugopal, Bhushan, in his argument, said that when the AG had said that documents were stolen, he had not meant that originals were taken away but the photocopies were taken out.
Shourie, who addressed the court for a brief while, said that the documents being relied by them and whose privilege was being sought by the government have been carried by media several times since November 18, 2018.
“We thank the AG that by saying in their affidavit that these are photocopies, they have proved the genuineness of these documents.”