‘Stolen Rafale Files’ in Public Domain, Can't Be Untouchable: SC Terms Govt Defence Bad in Law

New Delhi: Conveying its strong indisposition to have the Rafale deal scrutinised again, the central government on Wednesday told the Supreme Court that it is contemplating criminal actions against those involved in illegal leaks and stealing of some pertinent documents from the Ministry of Defence (MoD).

In what may also be construed as certifying the authenticity of the documents published by The Hindu newspaper and news agency ANI, the government said it will submit a report in the Court on Thursday regarding actions taken after these papers were reportedly stolen and published.

Attorney General KK Venugopal has argued that the top court cannot rely on these documents since they were not only stolen but also marked as classified under the Official Secrets Act for relating to the national security.

While the court fixed March 14 for further hearing in the matter, the law officer remained critical that the Supreme Court has already examined the defence deal once but attempts were being made in persuading the court through these 'stolen' documents to scrutinise the acquisition process one more time.

Venugopal pointed out that petitioners Yashwant Sinha, Arun Shourie and Prashant Bhushan have not disclosed whether these documents were stolen by some former MoD officials or the ones still employed there.

"If an FIR is to be registered, it will also name the petitioners, the newspaper and the reporters as accused," said the AG, claiming the entire efforts seem to delay the acquisition of the 36 fighter jets.

But the bench headed by Chief Justice of India Ranjan Gogoi reminded the government that there is no stay on the acquisition process and in fact, the December judgment was in their favour.

It also said that of the documents were stolen, it is for the government to put its house in order.

"You initiate criminal action...register FIR under the Official Secrets Act if you want. You may question the bonafide of the petitioners and ask us to look at those documents with suspicion. But to say that something which is now already in public domain is untouchable for us may not be a correct argument in law," the bench further told Venugopal.

In a tacit indication of the recent India-Pakistan conflict through air strikes, the AG said that the recent incidents have shown how vulnerable India is when its neighbour has superior F-16 fighter jets.

"How are we supposed to protect our people? We have MIG 21 from 1960s. Notwithstanding we still did good in the recent episode, we must get modern jets. Such petitions have a damaging effect. A CBI inquiry now will do great damage to the national interest and national security," Venugopal contended.

Justice KM Joseph, a member of the bench, however did not take this submission too well.

"The issue of national security doesn't arise when the question in the review petition is that their plea for investigation wasn't considered. Are you going to take shelter under national security when the allegations are about some grave crime, corruption? We don't think that is the correct approach when you say we should not look into these papers. We are an open country," added Justice Joseph.

At this, Venugopal retorted: "Yes...We have an extremely open system here. This is the only country where a court is examining a defence deal as if it is an administrative issue. No other court in any other country will do it."

The AG went on to state: "Certain issues have to be kept outside the purview of judicial review. Do we have to come to the court to justify when we declare war, when we declare peace? Do we have to come and seek permission of the court every time?"

On his part, Justice Joseph then questioned Venugopal if the government will have the same stand in Bofors case.

"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 in that case? Here we have an open system?" the judge asked the AG.

But Venugopal remained firm that the documents cannot be looked into by the Court and in no case, the Rafale matter could be reopened to be heard on merits.