Rafale papers missing, govt tells SC; plans action against newspapers for publishing files

Presenting the government’s views on an opposition-sponsored petition for a review of the earlier Supreme Court order on the Rafale fighter jet deal, attorney general KK Venugopal also indicated that action may be taken against two newspapers, including The Hindu, for publication of those documents.

A three-judge bench of the Supreme Court comprising CJI Ranjan Gogoi, Justice SK Kaul and Justice KM Joseph today started hearing on a review petition in the Rafale matter filed by opposition parties.

The apex court had, in December last year, turned down petitions seeking an investigation into the aircraft deal, saying that there was no “occasion to really doubt” the government’s decision-making process. Opposition has since aroused controversies over a number of facts presented in the judgement as well as new developments reported by the media.

Senior advocate and review petitioner Prashant Bhushan said the apex court had unknowingly relied on “erroneous facts” while delivering its earlier judgement and that new documents, in the form of news reports published in The Hindu, should now be taken on record.

Attorney General KK Venugopal then informed the court that the documents relied upon by the petitioners and The Hindu were stolen from the defence ministry and that the centre was contemplating a probe under the Official Secrets Act.

“I have an objection! These documents were stolen from the defence ministry by some former employee and the investigation is ongoing. These documents are marked secret and were published by two newspapers…this is an offence under the Official Secrets Act. We would be launching prosecution”, LiveLaw quoted Venugopal as saying. 

The attorney general is also reported to have told the court that action may be taken against two newspapers which published documents regarding the Rafale negotiations and its pricing, and that action was also warranted against the senior counsel who relied on it.

Today also The Hindu published something. This by itself is contempt of court, the Attorney General submitted. The strategy is to put out a news item the day before the hearing so as to influence the hearing, he added. 

I am suggesting that the newspaper is guilty under IPC for theft and under Official secrets Act for accessing privileged documents.

Review petition and perjury petition are liable to be dismissed on that ground alone, Venugopal submitted. 

In response to this, CJI Gogoi noted that the first publication of the Rafale file notings was done on 8 February.

“What have you done till now? You say the papers were stolen, what have you done?” the CJI asked. To which the attorney general responded that he will find out.

After breaking for lunch, the back-and-forth between Venugopal and the bench continued, centering around the admissibility of documents that had been obtained through illegal means.

In a hypothetical example, CJI Gogoi highlighted that if an accused stole a document to prove his innocence, it should be admitted in court.

“An accused is having difficulty in proving his innocence. He steals a document and shows it to judge. The document clearly shows he is innocent. Should the judge not admit the document,” the Chief Justice asked.

The attorney general, however, replied that once the document is a “subject matter of criminality”, the court should “not look into it”.

Original documents with The Hindu and ANI are purloined docs and the others published/used from these stolen docs, the AG said.

SC asked the AG whether the head of department in MoD can file an affidavit that documents used by paper and agency are stolen. The AG agreed to do so by Thursday.