Rafale Case: SC Reserves Orders on Centre’s Objection to Examining 'Privileged' Papers

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 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 was 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 He highlighted that Section 123 Indian Evidence Act only protected "unpublished documents".

Further, he said that journalistic privilege to protect sources is recognised by the Press Council of India Act as per Section 15. He also referred to the orders passed by the Supreme Court in 2G and coal block cases, whereby the visitors book registers of former CBI director Ranjit Sinha were accepted in evidence without insisting on revealing how they were obtained. He also referred to "Pentagon Papers Case", to say that United Sstates’ SC allowed publication of documents though they were related to Vietnam War.

"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.