Indian top court says ‘leaked’ Rafale documents admissible

The Supreme Court of India Wednesday dismissed the Narendra Modi-led government’s preliminary objections to review of an earlier judgment that had exonerated the government in the Rafale fighter jet deal, Asian News International reported.

In a move seen as detrimental to the ruling Bharatiya Janata Party (BJP) ahead of general elections starting on April 11, the top court also allowed the admission of three ‘leaked’ documents in the Rafale case. They will be used as evidence in re-examining the review petitions filed against the Supreme Court’s December 14 judgment, which refused to order a probe of the procurement of 36 Rafale fighter jets from France. The petition was filed by former Union ministers Yashwant Sinha and Arun Shourie and lawyer-activist Prashant Bhushan.

The Rafale deal has become a major controversy with the opposition alleging corruption on the part of the current government.

Reacting to the Supreme Court’s judgment, Congress chief Rahul Gandhi told the media, “The Prime minister has been claiming that the Supreme Court had given him a clean chit on the Rafale deal. The Supreme Court has clarified and has begun an investigation into the Rafale deal.”

Earlier, the BJP-led government had told the Court that the plea for review of the Rafale verdict was not maintainable as it was based on documents that were protected under the British-era Official Secrets Act of 1923. It claimed that the documents were unauthorized photocopies of the originals kept in the Ministry of Defense and leaked into the public domain by the media.

But Justice KM Joseph had countered the government’s argument by referring to the Right to Information Act of 2005. He said RTI had revolutionized governance and had an “overriding effect” on the Official Secrets Act.

The Official Secrets Act is India’s anti-espionage law and provides the framework for dealing with spying, sedition and other potential threats to national security. Section 8(2) of the RTI act compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests.”

Petitioner Arun Shourie said, “Our argument was that because the documents relate to defense you must examine them. You asked for this evidence and we have provided it. So the Supreme Court has accepted our pleas and rejected the arguments of the government.”

One of the “leaked” documents was a dissent note by three senior Defense Ministry officials on the pricing of the Rafale jets. According to a report in the Indian daily newspaper daily The Hindu, the officials had concluded in the note that the new Rafale deal brokered by Prime Minister Modi was not on “better terms” than the earlier deal between Dassault Aviation and the previous United Progressive Alliance (UPA) government led by the Congress party. The old deal was for 126 aircraft, whereas the new deal is for 36.

Earlier, on December 14, the Supreme Court had rejected a petition seeking an independent probe into possible discrepancies in the Rafale jet deal. The petitioners had alleged fiscal malfeasance and commercial favoritism in the deal. The Court had found that there was “no occasion to doubt” the decision-making process behind the 2016 purchase of Rafale jets from Dassault Aviation in the Rs 1 billion deal.