'When There Is Allegation Of Corruption Can Govt Take Shelter Under National Security?', SC Asks Centre In Rafale Review

The Supreme Court bench of CJI Gogoi, Justice S K Kaul and Justice K M Joseph today intensely quizzed Attorney General K K Venugopal on his argument that Court cannot rely upon stolen documents as evidence.

It was AG's argument that the review petition and perjury petition were based on documents published by newspapers, which were procured without authorization from the defence ministry. The documents were privileged and were obtained in violation of the Official Secrets Act; hence the petitions citing these documents should be junked - this was the sum and substance of AG's argument. 

Responding to this, Justice K M Joseph observed that even stolen documents can be looked into by the Court as per well settled principles under the Evidence Act. 

However, the AG persisted that it is important to reveal the source of the documents. At this juncture, the CJI asked hypothetically: "If an accused establishes the plea of alibi based on a stolen document, should the Court ignore?".

The AG stuck to his stand and quoted a 2004 SC decision authored by Justice Pasayat that illegally obtained evidence should be discarded. The bench in response observed that there were umpteen decisions which held that evidence procured illegally can be relied on by Courts.

The CJI remarked that if a person has committed offence under the Official Secrets Act, he can be proceeded against; but that will not nullify the effect of the document. 

Then the AG highlighted the importance of procuring Rafale aircraft in the interests of national security. The AG emphasised that the deal was essential to protect the country from enemies who have acquired latest generation of fighter planes."This purchase is essential for the survival of this nation against enemies", he said.

The submissions by AG in these lines invited the following comment from Justice K M Joseph : "When there is allegation of corruption, can the government take shelter under national security?" .

Without relenting, the AG advanced that the case had a political angle, and that the court was not the appropriate forum to deal with it. The CAG report is already tabled in the Parliament and it will look into it. 

"Anything on Rafale will be used by the opposition to destabilise the government", AG told the court about the possible political impact of the case.

Anything on Rafale will be used by the opposition to destabilise the Government, AG tells the Court about the political impact the case could have #Rafale #RafaleHearing

— Live Law (@LiveLawIndia) March 6, 2019

Then the Court proceeded to hear Prashant Bhushan, one of the review petitioners.

Bhushan countered AG's argument that a document cannot be used in evidence unless its source is revealed. He pointed out that in the 2G and Coal Scam cases, the Supreme Court had relied on official documents to order probe, although such documents were not the ones sourced through proper channel.

Bhushan referred those judgments to highlight that the very same arguments raised by AG now were discarded by the Court. 

He termed the AG's submissions 'astounding' and said that corruption allegations in defence deals do not enjoy any special exemption under law. He said that the petitions had mentioned that the documents were published by The Hindu and The Caravan. 

In the pre-lunch session Bhushan had argued that the Court failed to appreciate that the petition did not seek to strike down the deal, but sought enquiry into the corruption allegations pertaining to it. The SC judgment was based on incorrect and misleading facts submitted by the Government, he contended.

After that the Court heard Arun Shourie, another petitioner in the case for a while, before adjourning the case to March 14 for further hearing.

Along with the review petitions, the Court will also hear the correction petition filed by the Central Government, and also the petition filed for initiating perjury proceedings against officials who allegedly misled the Court by submitting false information in the notes submitted to the Court.

 It was on February 26 that the SC decided to afford open court hearing for the review petitions.

The former cabinet ministers Yashwant Sinha and Arun Shourie along with Advocate Prashant Bhushan in their review petitions have claimed that the December 14 judgment contains "patent factual and legal errors". On December 14 last year, the apex court had dismissed a clutch of Public Interest Litigations, observing that there was "no occasion to doubt" the decision-making process of the Centre in the procurement of 36 Rafale jets from France.

The following are some of the main grounds on which the review is sought.

• The prayer of the petitioners for registration of FIR and investigation by CBI was not dealt with and instead the contract was reviewed prematurely without the benefit of any investigation or inquiry into disputed questions of facts.
• The government has blatantly misled the Hon'ble Court and the Hon'ble Court has grossly erred in placing reliance on false averments in the note not even supported by an affidavit.
• The entire judgement is based on disputed questions of facts in respect of which an investigation needs to be done. As the judgement is based on evidently false averments in the note not shared with the petitioners, on that ground alone the entire judgement ought to be not just reviewed but recalled.
• The judgment did not consider material facts that raise pertinent issues such as: absence of sovereign guarantee by France in the Inter-Government Agreement even though Defence Procurement Procedures prescribed it, objections in Indian Negotiating Team (INT) to increase the benchmark price from 5.2 billion to 8.2 billion euros, and selection of Mr. Ambani's RAL as an offset partner.

The Government's note submitted on November 12 stated that the pricing details have been already shared with the CAG, and the CAG report "is examined by the PAC, and a redacted version of the report is placed in the Parliament". Based on this, the Court refrained from examining the pricing details of the deal, on the premise that they have been examined by the CAG and PAC. Since the CAG report was not existing at the time of judgment, the apex court's references to such a report in the judgment led to huge controversy. This led to the Government filing a "correction application" on the next day of judgment, saying that the references to the CAG report were based on misinterpretation of grammatical tenses.

The review petitioners have filed a separate petition seeking perjury proceedings based on the revelations about the Rafale decision making process in the CAG report, and also in the reports published in THe Hindu and The Caravan.