The Supreme Court bench led by the CJI Ranjan Gogoi also comprising Justice SK Kaul and Justice KM Joseph on Thursday, reserved its order on whether it would examine the alleged leaked documents submitted by Yashwant Sinha, Arun Shourie and activist advocate Prashant Bhushan in the review petitions filed in the Rafale deal.
The government while referring to section 123 of the Evidence Act as well as provisions of RTI Act had argued that the submitted documents are privileged and without its permission they cannot be produced in court.
Attorney General KK Venugopal also urged about removal of the leaked documents submitted in the case from the records as the government had privilege over them.
However, the Court rejected government' contention stating that the RTI Act also applies for sensitive information in cases of corruption and human rights violation. Justice Joseph said,
"In 2009, your own Govt said file notings can be made available under the RTI. Let us not go back now."
It was also maintained,
“What privilege do you (Attorney General) claim? They (petitioners) have already produced them in court. As per Section 22 and Section 24 of RTI Act ‘even intelligence and security establishments bound to give information about corruption and human rights violations."
On the other hand, Mr.Prashant Bhushan while opposing AG’s submission referred the Pentagon Papers case of US, wherein defence documents in connection with the Vietnam War were allowed to be published and the US Supreme Court in the case had dismissed the government's claim of national security,
It was added that when the issues are of public interest, it is not a mandate to disclose source of information and every contention raised cannot be dismissed in the name of national security.
However, the bench was of the view that firstly it will decide the preliminary objection raised by the Centre, and then it will look into the facts of the case.
During the hearing of March 6, Attorney General K K Venugopal had accused that certain confedential government documents were stolen from the Ministry and alleged that the petitioners seeking review of Rafale verdict are relying on stolen evidence.
However, two days later, Mr.Venugopal took a U-turn from his statement and claimed that he had meant in his submission that petitioners has used photocopies of the original papers, which are considered secret by the government.
The plea for recall of the judgment alleged that the Supreme Court's judgement, relied upon a non-existent Comptroller and Auditor General (CAG) report as the judgement said that the CAG report was finalised and examined before the Public Accounts Committee (PAC), which were apparently “incorrect claims” made by the Centre.