NEW DELHI: The government opposed any review of the Supreme Court's refusal to order an investigation of the Rafale deal, insisting that the documents on which the case rests were "stolen" and could not be used in a court of law.
The "documents were stolen or purloined by former or current officers in the ministry of defence,"
said attorney general KK Venugopal. "These are privileged documents under the Official Secrets Act (OSA)… These were stolen to be published. An investigation is underway. Criminal action will be taken against those who have published it."
He first referred to "two newspaper" in this regard and subsequently named The Hindu and ANI, a news agency. A review is a limited exercise in which the same bench that dealt with the case earlier re-examines its ruling in the light of new facts. The next hearing is scheduled for March 14.
Venugopal, who was assisted by solicitor general Tushar Mehta, made several arguments against reviewing the Supreme Court's December 14 decision. The information could not have been revealed under the Right to Information Act as it involved national security and affected relations with other nations. Such information cannot be used by those who came into illegal possession of it. This is a crime punishable with jail terms of three to 14 years under the OSA, he said.
POWER TO EXAMINE DEFENCE DEALS
The revelations regarding the pricing and other details of the Rafale deal had damaged national security, the government's seniormost legal officer argued. He said the Rafale jets were "urgently" needed to defend the country's security from Pakistan's F-16s. "Otherwise, how can we protect the country against F-16s?" he said, referring to heightened border tensions. "Do you know how many of our aircraft can compete with the F-16s?"
Preparations have been underway for the Rafale's induction for some time
"Our pilots are already in Dassault for training. The first aircraft will be delivered in September 2019. Two squadrons of Rafale will be delivered in flyaway condition," he said. "Superior avionics, missiles are required to defend the country against our apparent enemies in the world."
Any court intervention in the deal will disrupt that process, he said.
"Should the court order an inquiry or set it aside, we will have to start the whole process all over again. The whole purpose will then be lost," he said. He, however, commended the performance of the older MiG fighters, one of which was shot down by Pakistani planes on February 27, a day after the IAF struck terrorist strongholds in the neighbouring country's territory.
Venugopal contested the Supreme Court's power to examine defence deals, insisting that there is no global precedent for this. He said the CAG report on the deal had been placed in Parliament, which will examine it.
"Should we come back to the court every time we declare war or sign international treaties? Can the court sit in review over such decisions?" he said.
The three-judge bench led by chief justice of India Ranjan Gogoi asked the attorney general if he was claiming "privilege" or that the documents were "tainted" and hence cannot be examined.
Venugopal replied: "Both... otherwise the court will be setting a wrong precedent that illegally procured information can be used without revealing the source."
The CJI asked if the same analogy would work if an accused in a criminal case produced a stolen document to prove his innocence. "Can the court shut it out?" The others on the bench were KM Joseph and Sanjay Kishan Kaul
Venugopal said the court's words would be used by the Opposition to destabilise the government. "The court must therefore exercise restraint."
N Ram, author of a series of exposes on the Rafale deal in The Hindu, said the paper would protect its sources.
"You may call it stolen documents... we are not concerned," he was cited as saying by PTI. "We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves"
Ram is chairman of The Hindu Group's publishing company, THG Publishing Pvt. Ltd.
The opposition Congress party reiterated its accusation of corruption.
"The corruption and malfeasance in Rafale deal is out in the open. PM Modi misused his office to give benefits to Dassault Aviation and caused loss to the public exchequer," Congress spokesperson Randeep Surjewala said. "It is now crystal clear that blatant and massive corruption has taken place in the Rafale deal. It is undoubtedly established that Modi misused his office as Prime Minister to grant undue benefit to Dassault Aviation and caused a loss to public exchequer."
Activist lawyer Prashant Bhushan and former minister Arun Shourie urged the court to ignore the argument that "tainted" documents cannot be used in court.
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