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Rafale Review : Supreme Court reserved orders on the preliminary objections raised by the Centre

In the Rafale review, the Supreme Court reserved orders on the preliminary objections raised by the Central Government that the documents presented by the petitioners cannot be relied on by the Court as they are “privileged” documents.

The Supreme Court heard the review plea on the Rafale case on Thursday. The Centre had filed an affidavit in the court wednesday and said that the documents filed by the petitioners in the case are sensitive to national security. The Defence Ministry’s affidavit said, those who conspired in photocopying the papers have committed a crime and put the security in jeopardy by leaking them. It said, an internal inquiry is underway to find out the leakage.

The affidavit said, the documents attached by the petitioners — former Union Ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan relate to war capacity of the combat aircraft. The government said, the documents unauthorisedly produced by petitioners, are exempt from disclosure under the Right to Information Act.

The apex court was hearing petitions seeking review of its December last year’s verdict in which it gave a clean chit to the government in the deal with France for procurement of 36 Rafale fighter jets. It had dismissed pleas challenging the deal and seeking a Special Investigative Team led probe into the alleged irregularities in the deal.

In the Rafale review, the Supreme Court on thursday reserved orders on the preliminary objections raised by the Central Government that the documents presented by the petitioners cannot be relied on by the Court as they are “privileged” documents. The Attorney General opened the arguments today by saying that the documents presented are privileged documents , which cannot be considered in evidence as per Section 123 of the Indian Evidence Act. The documents are protected under the Official Secrets Act. The AG also added that the disclosure of the documents is exempted under the Right to Information Act as per Section 8(1)(a).

Justice K M Joseph however responded by saying that Section 22 of the RTI Act gave it an overriding effect over the Official Secrets Act. The judge also referred to Section 24 of the RTI Act to state that even security and intelligence establishments are not exempted from disclosing information in relation to corruption and human rights violations.

Prashant Bhushan, one of the petitioners, countered the submissions of AG by saying that claim of privilege cannot be made over documents which are already in public domain. He highlighted that Section 123 Indian Evidence Act only protected “unpublished documents”.

“The concern of the government is not to protect national security, but to protect the government officials who interfered with the negotiations in the deal”, he said.

Arun Shourie, another petitioner remarked that he was thankful to the AG for admitting that the documents were genuine by stating that they were photocopies. The Court was hearing the review petitions filed by Prashant Bhushan, Yashwant Sinha and Arun Shourie against the December 14 judgment. Listed along with the review petition were the correction petition filed by the Central Government and the petition filed for initiating perjury proceedings against officials who allegedly misled the Court by submitting false information in the notes submitted to the Court

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