Attorney-General K.K. Venugopal told the Supreme Court on Wednesday that “secret” documents published by The Hindu on the purchase of 36 Rafale jets were “stolen” from the Ministry of Defence, probably by former employees.

Mr. Venugopal referred to the lead article in The Hindu on March 6, saying ‘sensitive’ information like the price of the weapons is now in the public domain. The government had not wanted it disclosed for the sake of national security.

Parallel talks

He then referred to how The Hindu had published “only the first file noting” in reference to the Ministry’s objection to “parallel parleys” by the Prime Minister’s Office with French authorities over the Rafale deal. The second file noting by former Defence Minister Manohar Parrikar, terming the note as an “over-reaction”, was published by the news agency, Asian News International (ANI). He said the documents with The Hindu and ANI were “stolen documents.”

The AG said the government is thinking of taking “criminal action” under the Official Secrets Act. He submitted that the publication of secret defence documents had put national security at risk and affected relations with friendly foreign powers.

“In future, foreign countries will think twice. They will think defence purchases will have to go through Parliament, TV channels and then the judiciary. These defence purchases involve the very security of the state... the purchase of planes is essential for the survival of the nation, for the survival of each one of us,” he told a Bench led by Chief Justice of India Ranjan Gogoi on Wednesday. Justice K.M. Joseph, on the Bench, questioned the AG’s repeated reference to national security.

“Mr. Attorney, you keep repeating about national security. Suppose a great crime like corruption has been committed, can you seek shelter under national security,” Justice Joseph asked Mr. Venugopal.

Mr. Venugopal said the issue pertained to a defence purchase and involved the security of the State.

“But if the law of the country has been broken through a corrupt practice, can you seek protection under national security?” Justice Joseph persisted.

Justice Joseph referred to the Bofors case, asking “in an open system like in India, whether courts should shut out documents".

The Bench asked the government to put on affidavit that the documents were stolen.

“If the documents are stolen, what action have you (Centre) taken till now? The first publication was in February, what have you done?” Chief Justice Gogoi asked. To this, the AG said he would “find out”.

The court questioned the AG’s line of argument that the court should ignore the “stolen documents” and dismiss the review petitions filed against the December 14 judgment in the Rafale case.

“Our judgments say that even stolen evidence can be looked into, if found relevant… Mr. Attorney, you have to state the law. You are not stating the law, we are sorry to say,” Justice Joseph observed.

The CJI intervened with an anecdote, saying “a man is about to be wrongly convicted of a crime. There is a document in the possession of another man which will prove his guilt. He steals it from this man and produces it in court. Do we, the court, refuse to look into the document?”

“We can understand you saying that petitioners came with unclean hands. That they got the documents through doubtful sources. But it is another thing to say that the court cannot consider these documents at all. That these documents are untouchable,” Chief Justice Gogoi said.

“We may not utilise these documents, but it is bit too much to say that they should not be relied on at the very threshold,” Justice S.K. Kaul, on the Bench, addressed the AG.

Mr. Venugopal responded that court should not look into documents which are the “subject matter of criminality”. He indicated that the Rafale controversy was political in nature and judiciary should exercise restraint.

He said the review petitioners should also face prosecution for their “criminal act” of producing these stolen documents in court.

Advocate Prashant Bhushan, one of the review petitioners, accused the AG of intimidation. He said intimidation before the court amounted to criminal contempt.

Mr. Bhushan submitted the government itself had disclosed the prices of the Rafale and Mirage aircraft in the parliament. He pointed to how the Comptroller and Auditor General had, for the first time in its history, publish a redacted report on the Rafale purchase at the insistence of the government.

The court scheduled the case for hearing on March 14.