On Wednesday, the Supreme Court did not go into the Rafale case on merits. And yet its strong observations on the freedom of the press to publish documents officially marked “secret” even if they were improperly acquired will be remembered as a landmark day. The court also held that they would be treated as evidence if they had “relevancy”. These developments have brought the regime's self-righteous self-certification on being the best guardians of the country's security interest, and on probity, under serious examination.
In its judgment dated December 14, 2018, the apex court had refused to comment on the highly controversial subject of the pricing aspect of the Rafale deal, which has led to the strong suspicion that the government’s moves ensured that a practically bankrupt India firm obtained an offset contract of nearly `30,000 crore from Dassault Aviation, the French manufacturers of the Rafale fighter aircraft. Inherent in this is the suggestion of the offset money being used for corruption.
Still, the top court held — on the basis of documents supplied to it by the government in a sealed cover — that the present dispensation had, broadly speaking, followed the laid down procedures in clinching the Rafale deal.
It was on this basis that the apex court had rejected the petition of three eminent citizens — former cabinet ministers Yashwant Sinha and Arun Shourie and the well-known lawyer-activist, Prashant Bhushan — for a probe guided by it into the suspected malfeasance in the whopping Rafale deal for the purchase of 36 aircraft, India’s largest single defence contract. This led to the government falsely claiming that the top court gave it a “clean chit” on Rafale.
In February, a prominent daily and other media houses published internal defence ministry documents that shook the assumption that procedures had been followed. In fact, these revealed the opposite — that the PMO was running an unauthorised and illegal “parallel” negotiation with the French, undermining the efforts of the duly authorised Indian Negotiating Team consisting of domain experts, that this hurt the Indian exchequer, and that anti-corruption clauses were dropped after the cabinet committee on security had officially cleared the deal. When, armed with these published documents, the petitioners sought a review of the December 14 judgment, Attorney-General K.K. Venugopal brazenly argued that the documents in question had been “stolen”. The government also claimed “privilege” under the Official Secrets Act and urged the top court to reject the plea to visit the case afresh. He threatened to criminally proceed against the media houses for publishing such documents and also against the lawyer (Mr Bhushan) for arguing the case in court. Subsequently, these threats were retracted.
The top court has now demolished the government’s case of seeking privilege, and will fix a date to hear the petition to review its own December finding. That could lead to tantalising turns in the Rafale case....