Rafale case: Can’t stolen documents be relied on if relevant, asks SC

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Published: March 7, 2019 5:21:34 AM

An investigation into the theft (of the documents) is on, the AG said on a day The Hindu, which carried a series of articles critical of the government on the deal by citing official documents, published another one.

The question cropped up during the hearing of the Rafale review petitions

The Supreme Court on Wednesday seemed to clearly disagree with the government as it sought to dub the documents relied on by petitioners who sought a review of its ruling on the Rafale aircraft deal as ‘inadmissible’ since they were ‘stolen’ ones. During the hearing of the review petitions Attorney-General KK Venugopal said the relevant documents were marked ‘secret’ and ‘classified’ and were in the public domain in violation of the Official Secrets Act.

An investigation into the theft (of the documents) is on, the AG said on a day The Hindu, which carried a series of articles critical of the government on the deal by citing official documents, published another one.

The question cropped up during the hearing of the Rafale review petitions when Venugopal objected to the submission of a note by the petitioners to the bench comprising Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph. At one point, Justice Joseph asked, “Can relevant evidence be cut out saying it is illegally obtained? Can’t stolen evidence be looked into if it is relevant?” He added: “Suppose great crime is committed, are you going to take shelter under national security? You can’t say that we cannot look into the documents that have come before us.”

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Even the CJI joined Justice Joseph in asking the AG if “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?”

Venugopal said that “he has to disclose the source of the document. The submission is, once the document is a subject matter of criminality, in my opinion, the court should not look into it and the documents cannot be shown in the court as they would affect national security.”

However, Justice Gogoi said that “if your submission is that petitioners have not come bona fide, then that’s different. But can you say that the document is completely not touchable?”

Justice Kaul said, ““If the documents were stolen, the government should put its own house in order. It is one thing to say that we should look at these documents with suspicion. But to say we can’t even look at those documents may not be a correct submission in law.”

The AG said that the matter has been given a political colour and the court should exercise restraint in passing orders. “In this limited area concerning the defence of frontiers, would it not be appropriate for Your Lordships to exercise restraint? This is a matter by which opposition is trying to destabilise the government… The CAG report is already placed before the Parliament and it will look into the issue.”

Referring to news items published in The Hindu and other publications, the AG during the hearing also said that “they (petitioners) have come with a document which is stolen. Your Lordships might have your view on it (admissibility of such a document)…”

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When AG stressed that the court cannot look into the documents unless the source is known and is lawful, Justice Joseph said: “there were allegations of corruption in Bofors. Now will you say the same thing that a criminal court shouldn’t look into any such document?… we are here to enunciate the law…now where do we get an authority which says if a document comes from an unknown or unlawful source, documents cannot be looked into?” he added. Meanwhile, the apex court also sought to know from the government what has it done when it is alleging that the stories are based on stolen material.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed a petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of PILs against the Rafale deal in December.

Most legal experts who FE spoke to disagreed with the government’s view that stolen documents should not be admitted/looked into by the court. One of them said the SC has explicitly held that there is no construction of fundamental rights in the Constitution which can be construed in a manner so as to exclude the evidence obtained in an illegal search (Pooran Mal Etc vs Director Of Inspection of Income Tax). “If the story is based on documents which were available to the media, even then there are umpteen judgments including a very famous judgment of the Bombay High Court of 1930s which says that a crow could have dropped these documents on your terrace. Unless it can be established that the author was responsible for stealing such documents Official Secrets Act shall not apply,” SC lawyer Sandeep Narain said, adding that the government can not claim any special protection if such documents are already in public domain.

According to another SC lawyer, who didn’t want to be named, “It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet.”

(With PTI inputs)

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