‘Stolen Documents’: Opposition Questions Government’s Ability to Defend Country

New Delhi: A day after the Government claimed in the Supreme Court that documents related to the Rafale fighter deal were “stolen” from the Ministry of Defence, and also threatened to invoke the Official Secrets Act and initiate “criminal action” against two publications which ran reports on the basis of these documents, and a lawyer, the Opposition questioned the government’s ability to defend the country.

Slamming the government over the Attorney General’s submission in the Supreme Court claiming that the Rafale documents published in The Hindu were “stolen” from the Ministry of Defence, CPI (M) General Secretary Sitaram Yechury said on Twitter that the AG had merely confirmed the series of news stories questioning the Rafale deal. “Modi govt itself admits Rafale documents “stolen” from the Ministry of Defence. How can country’s security be entrusted with this govt? But thanks to them for confirming the documents. An FIR against Modi is now inescapable,” he tweeted.

CPI leader D. Raja told The Hindu that instead of shooting the messenger the government should respond to the message. “It is shameful that Attorney General is telling the apex court that the files have been stolen. Is the chowkidaar not able to protect the file? Now they are attacking The Hindu. When its suits them they claim that no one should question the source. You are attacking the messenger what about the message. Why PM is not able to respond to issues in public domain,” he said.

Read More: CAG Report: A Poor Defence of the Rafale Deal

Rahul Gandhi along with party spokesperson Randeep Surjewala addressed the media in New Delhi on Thursday morning and accused  Prime Minister Narendra Modi of performing a bypass surgery in the Rafale deal and asserted that Mr. Modi should offer to conduct an inquiry.

"The government now says it will investigate the media for the Rafale files being stolen. But the one [Mr Modi] who conducted parallel investigation…why will he not be investigated?” he asked.

"If the documents have been stolen, that means they are authentic and they clearly state that parallel negotiations were carried out by the Prime Minister, the price of the jets were inflated and the delivery of the jets were delayed,” he alleged.

"Let there be an investigation about the documents, but at the same time also investigate the Prime Minister's role in the Rafale [deal]," he said.

Violation of the Official Secrets Act?

N. Ram, Chairman of The Hindu publishing group, responded strongly to Attorney General K.K. Venugopal’s argument in the Supreme Court that the Rafale deal documents were “stolen” and those publishing them were guilty under the Official Secrets Act.

“We did not steal the documents from the Ministry of Defence, we got them from confidential sources and no force on earth can make me or us reveal the source of the documents, because we have given our word,” said Mr. Ram. “Secondly, we have published this information obtained through investigative journalism in the public interest, significant information that was withheld or suppressed despite repeated demands made in Parliament and outside. Thirdly, an unintended consequence of alleging that we have published ‘stolen documents’ has been authentication of the documents by the government itself; you need no further evidence that this is the real thing, the real deal.”

Read More: Modi Govt Asks SC To Dismiss Rafale Review Petition Based On The Hindu Reports

He also asserted that “we are fully protected by Article 19(1) A of the Constitution, the fundamental right of freedom of speech and expression and also by the Right to Information Act, specifically 8(1)(i) and 8(2), which override the Official Secrets Act.”

“There is no question of any national security interest being compromised by it,” he said.

Mr. Ram also called for democratic India to do away with the Official Secrets Act, 1923, citing it as an obnoxious piece of colonial legislation which is anti-democratic and has rarely been used against publications in independent India.

“Stolen Documents” as admissible proof

Senior advocate and constitutional expert Dushyant Dave on Wednesday said that there was no violation of the Official Secrets Act in the publication of documents related to the Rafale deal and responding to a query on whether stolen documents can be relied upon by a court as an admissible proof, (an issue which was at the centre of the Rafale case hearing in the Supreme Court on Wednesday) Mr. Dave said, “The argument on behalf of the government is an absolute non-starter”.

“It is made only to deflect real debate on this most sensitive public issue. The government is on the back foot after having misled the Supreme Court as alleged in review petition by Shourie et al and is therefore trying to again lead the Supreme Court on a garden path,” he said.

“The Supreme Court is the ultimate arbiter of rule of law and has duty to question every executive action, irrespective of so called national security argument. The government had a duty to satisfy the court and must be fair to the court. It is unfortunate the government is taking such a stand,” Mr. Dave said.

Former Additional Solicitor General and senior advocate Indira Jaising agreed with the oral observation made by the Bench headed by Chief Justice Ranjan Gogoi that even stolen evidence could be looked into, if it was found to be relevant.

“The CJI gave the answer, as far as I have seen from tweets,” Ms. Jaising said.

During the hearing the CJI- Justice Gogoi observed, “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 they are untouchable”.

Concurring with the top court’s oral observation, senior advocate Rebecca John said, “the answer is given by the Bench itself when the CJI (Chief Justice of India) asked how does it prevent the court from looking in the documents”.

Read More: CAG On Rafale: Tried To Absolve Modi, Unwittingly Exposed His 'Lies'