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The exchange between Justice KM Joseph and Attorney General KK Venugopal in the Rafale case spilled into the second day of the hearing today.
The Attorney General has all throughout been strongly contesting the admissibility of certain confidential documents/notes which he alleged were photocopied from the Defence Ministry and hence not admissible.
When the matter was last heard on March 6, Venugopal had submitted that disclosure of the contents of the Defence Ministry note amounted to an offence under the Official Secrets Act. It was his contention that such stolen documents cannot be relied upon by the court unless the source from which the same was procured is disclosed.
Justice Joseph had, however, expressed his disinclination to go along with that argument asking the AG,
“Can relevant evidence be cut out saying it is illegally obtained? Can’t stolen evidence be looked into if it is relevant?”
When the matter was taken up today, Attorney General placed heavy reliance on Section 123 of the Indian Evidence Act to contend that the document in question cannot be used in court without the permission of the concerned officer of the Union government.
He also submitted that the document in question can be withheld from disclosure under the RTI Act.
Justice Joseph then proceeded to quiz Venugopal on the above aspects.
While Venugopal cited Section 24 of the RTI Act regarding exemption granted to intelligence and security organisations (from disclosing information), Justice Joseph adverted to the proviso to the said Section stating that in cases of corruption and human rights violations, the protection afforded by Section 24 won’t be available.
In case of corruption and human rights violations, sensitive organisations will have to disclose information, he said.
Justice Joseph also referred to Section 22 of the RTI Act which states that the RTI Act shall override the Official Secrets Act and any other law.
Referring to the RTI Act as a piece of legislation which brought about a “revolution”, Justice Joseph underlined the fact that with the ushering in of RTI jurisprudence, we have to look forward when it comes to disclosure of information and not go back to the earlier stances adopted in this regard.
“RTI Act of 2005 brought about a revolution, let us not go back”, he said.
He also referred to the stand of Union government in 2009 when it had said that file notings can be made available under the RTI Act.
The Court after hearing the petitioners reserved its order on the preliminary objections raised by the Attorney General regarding the admissibility of the documents.
Before the Bench rose, Justice KM Joseph attempted to once again clarify the stance of the AG by asking
“Is it your argument that we (court) cannot even look into the documents even to ascertain whether the same is privileged?”
The reply by the AG to the same was not audible at the back.
There are two possible outcomes in the review petition – either the court will accept the preliminary objection raised by AG and dismiss the review petition in limine. In that case, the case in the Supreme Court will be put to rest once and for all.
If the court chooses not to accept the AG’s preliminary objections on privilged documents, the Court will then proceed to hear the review petition on merits.
Read the order below.