Rafale deal issue still haunts Modi Government; All focus on Supreme Court order

In another high voltage hearing, the Supreme Court reserved its order on the issue of preliminary objections raised by the Central Government in the Rafale review proceedings. After the Supreme Court gave its verdict in December 2018 dismissing the writ petitions filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan seeking an independent investigation into the Rafale deal, citing lack of jurisdiction, much water has flown.

In fact, the Supreme Court’s decision itself was full of incorrect facts and wrong information, especially when it noted that the Rafale pricing was allegedly published in the CAG report, which was shared with the Parliamentary Accounts Committee (‘PAC’). This was immediately caught as a lie, and the Government was forced to file a clarification in the Supreme Court that there was ‘typo’ and the CAG was looking into the issue.

Thereafter, from January, 2019 onwards, the national paper, The Hindu, published a series of articles that investigated the various aspects of the Rafale deal, and found many irregularities, particularly that Prime Minister’s Office (‘PMO’) interfered in the Rafale negotiations, and undermined the capacity of the Indian Negotiating Team, and how the cost of new Rafale deal was more, without a bank guarantee.

Accordingly, Yashwant Sinha and the other two petitioners filed a review petition challenging the December 2018 order as well as filed an application under Section 340, CrPC against the Central Government for giving false information to the Supreme Court in a sealed cover.

At the start of the proceedings, the Attorney General contended that the review petitions could not be entertained, since they were based on ‘stolen’ documents, and proceedings under the Official Secret Act would be initiated against the Petitioners. He further stated that there was a ‘theft’ of the relevant documents, which were used in the review petition, and the Court ought not to rely on them, thereby admitting that the documents were genuine, and the contents were not denied.

However, he clarified later that documents were not ‘stolen’ but ‘unauthorised’ photocopies of the documents were committed by the Petitioners, thereby making them liable for action. The Attorney General also argued that documents were also privileged documents protected under the Official Secret Act, and could not be relied upon, and their disclosure was exempted under the Right to Information Act, 2005 (‘RTI’).

In their response, Advocate Prashant Bhushan rubbished all the arguments raised by AG as incorrect and superfluous. He noted that the documents were not ‘privileged documents’, since they were already published in the media, and the claim of ‘privilege’ was applicable only to the unpublished documents under the Evidence Act.

He further argued that the documents in the Hindu, could not be scrutinised because of the protection provided to journalistic sources under Section 15 of the Press Council Act. The AG’s arguments did not fly with the Judges also, who observed that the RTI superseded the Official Secrets Act, and even the defence deals were subject to RTI disclosure, in case of allegations of corruption or human rights violations.

It is clear that the Government has been caught lying in the Court in terms of Rafale deal and is trying to intimidate the Petitioners by threatening false prosecution. The complete bypassing of procedures, undermining India’s interests, and favouring Anil Ambani in the deal is now out in the open, and the Government is trying to do face saving by making wild allegations of the Rafale papers, being allegedly stolen. In fact, most of the significant corruption investigations, i.e., 2G Spectrum allocation or Coal block allocation, have relied on the alleged leaks and disclosure of confidential documents reflecting wrong doing.

The Court cannot be mute spectator if allegations of major procedural violations are being published in the media on the basis that these are ‘leaks’, and the source is not verified. Most government corruption cases are based on leaks of confidential information, and that is why the law seeks to protect whistleblowers, in order to provide them with a free and safe atmosphere to expose illegalities and irregularities.

The Central Government’s stand on corruption is very clear from the fact that it has not bothered to notify the Whistle Blowers’ Act, 2014, which provides a mechanism to investigate alleged corruption and misuse of power by public servants, and also protect persons who expose such wrong doings.

The Act was passed by the Parliament in early 2014, and in the last five years, the present Government just sat on the law, and did not bring it into force. Similarly, it did not bother to appoint the Lokpal till 19th March 2019 just few weeks before the general elections in April-May, 2019.

This is precisely the reason why the Supreme Court should reject the preliminary objections and decide the review petitions on merits. The apex court has the Constitutional responsibility to uphold the sanctity of law. Modi Government is guilty of many malpractices in respect of the Rafale deal case.