New Delhi: The Supreme Court made it clear on Thursday that it will decide first on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case.
A bench headed by Chief Justice Ranjan Gogoi asked the petitioners seeking review of its order to focus on the preliminary objections regarding admissibility of the leaked documents. "Only after we decide the preliminary objection raised by the Centre, we will go into the facts of the case," said the bench, also comprising Justices S K Kaul and K M Joseph.
At the outset, Attorney General K K Venugopal, appearing for the Centre, claimed privilege over documents pertaining to the Rafale fighter jet deal with France and told the Supreme Court that no one can produce them in the court without the permission of the department concerned.
Venugopal referred to section 123 of the Evidence Act and provisions of RTI Act to buttress his claim. He told the top court that no one can publish documents which relate to national security as the security of the State supercedes everything.
The apex court’s bench, headed by Chief Justice Ranjan Gogoi, asked the government’s top advocate, "What privilege do you claim? They have already produced them in court.”
Upon hearing the Attorney General's submissions, the Chief Justice asked him to file an affidavit claiming the privilege.
Advocate Prashant Bhushan, one of the petitioners seeking review, opposed the submission and said that the Rafale deal documents, which AG says are privileged, have been published and are already in public domain. Bhushan said that provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies.
"The CAG report submitted by the government itself contains all details of as many as 10 defence deals. It is untenable on their part to now claim the privilege. Rafale is the only case where they redacted pricing details," Bhushan said.
He said the government had itself leaked some of the documents containing notings by the then Defence Minister (Manohar Parrikar).
Bhushan also submitted to the SC that there is no need for disclosing the source. He said that disclosing the source was not a necessity, as and when matters of public interest are there.
Another petitioner Arun Shourie also argued that, "If AG said that the documents were stolen and photocopied, then it proves that the documents were genuine."
The government urged the Supreme Court to remove from the review petitions the leaked pages of the secret documents related to the Rafale fighter jet deal, claiming privilege.
During hearing, one of the petitioners in the case, Manohar Lal Sharma also questioned as to why no FIR has been registered under the Official Secrets Act if the documents are classified.
There is no government-to-government contract in purchasing Rafale jets as there is no sovereign guarantee extended to India by France in the Rs 58,000 crore deal, Bhushan said. He also said the Press Council of India Act provides provisions for protecting sources of journalists.
Earlier on Wednesday, the government had filed a fresh affidavit in the apex court in the Rafale case, saying that “unauthorisedly-accessed” documents related to “internal secret deliberations” had been presented in a “selective” manner to mislead the court and amounted to damaging national security.
