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SC allows use of leaked documents in Rafale case, dismisses Centre's objections

twitter-logoPTI | April 10, 2019 | Updated 19:23 IST

(Eds: Adds details from judgement ) New Delhi, Apr 10 (PTI) In a setback to the Centre, the Supreme Court Wednesday allowed the plea relying on leaked documents for seeking review of its Rafale judgement and dismissed the government's preliminary objections claiming "privilege" over them. The Centre had submitted that the three privilege documents were unauthorisedly removed from the Defence Ministry and used by the petitioners to support their review petitions against the December 14, 2018 judgement of the apex court which dismissed all pleas challenging the procurement of 36 Rafale fighter jets from France. A three-judge bench delivered two separate but unanimous verdicts rejecting the objections raised by the Centre that those documents were not admissible as evidence under Section 123 of the Indian Evidence Act, and no one can produce them in court without the permission of the department concerned as those documents are also protected under the Official Secrets Act. The Centre also failed to impress the bench, comprising Chief justice Ranjan Gogoi and Justices S K Kaul and K M Joseph, that the disclosure of those documents was exempted under the Right to Information Act as per Section 8(1)(a) and those who conspired in photocopying the papers committed theft and put national security in jeopardy. CJI, who wrote the judgement for himself and Justice Kaul, noted that all the three documents were in "public domain" and published by prominent daily The Hindu were "in consonance with the constitutional guarantee of freedom of speech". CJI said: "We deem it proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of contents of the 3 documents, admissibility of which, in the judicial decision making process, has been sought to be questioned by the respondents in the review petitions." The CJI, who penned the 18-page judgement, said the documents used by former Union ministers Yaswant Sinha and Arun Shourie and lawyer Prashant Bhushan in their plea were published in ‘The Hindu’ in February and one of the papers was also published by ‘The Wire’. "The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. "No question has been raised and, in our considered opinion, very rightly, with regard to the publication of documents in ‘The Hindu' newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech," Justice Gogoi said. Senior advocate Vikas Singh, who appeared for another petitioner Vineet Dhandha, said today's judgement makes it clear that during the hearing of the review petition the bench will look into various issues on the Rafale jet deal including the question of pricing and also selection of Indian offset partner of Dassault. The two judges also noted no law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to its notice. "In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions," the judges said. The apex court said there is no provision in the Official Secrets Act and no such provision in any other statute has been brought to its notice by which Parliament has vested any power in the executive to restrain publication of documents marked as secret. While rejecting the contention that there was a protection from publication of the documents relied upon by the petitioners, it said, "Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records and as noted the documents have already been published in different editions of ‘The Hindu’ newspaper". A claim of immunity against disclosure under Section 123 has to be essentially adjudged on the touchstone of public interest, it said. To satisfy itself that public interest is not put to jeopardy by requiring disclosure, the Court may even inspect the document in question though the said power has to be sparingly exercised, it added. The immunity claim is plainly not tenable, it said. On RTI Act, it said that when the documents are already in the public domain, "we do not see how the protection under Section 8(1)(a) of the Act would serve public interest". Dealing with the submission of Attorney General K K Venugopal, who questioned the manner in which the documents were procured by the petitioners, the apex court referred to its previous judgement. It said a view was taken that the "test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out". Justice Joseph, who gave different reasons for concurring with the CJI, said: "The correctness of the contents per se of the documents are not questioned. "Lastly, the case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and ...the state does not take objection to the correctness of the contents of the documents." PTI RKS MNL PKS SJK SA

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