Everything you need to know about the Rafale deal and the case of the ‘stolen documents’

In yet another controversial development in the Rs 59,000 crore defence agreement with France, the Centre appeared before the Supreme Court Wednesday saying that documents related to the Rafale aircraft deal have been ”stolen” from the Defence Ministry and an investigation into the theft is on.

This was a reference to the exclusive report by The Hindu, which published on February 8 an internal note from a time when negotiations were in full swing. According to this note, the Ministry of Defence (MoD) strongly objected to “parallel negotiations” conducted by the Prime Minister’s Office (PMO) with the French side.

How did it change the course of the hearing?

The note dated November 2015 was addressed to then Defence Minister Manohar Parrikar, saying that parallel parleys led by the PMO had “weakened the negotiating position of the MoD and Indian Negotiating Team.”

The government’s submissions to the Supreme Court last year, however, had no mention of the PMO’s role in these negotiations, which consequently opened a new can of worms and shook the foundation on which the apex court had given the centre a clean chit last December.

The Hindu report last month moved Congress chief Rahul Gandhi, one of the most vocal critics of the government’s alleged “criminal misconduct”, to ask, “If Supreme Court had this paperwork, do you think that the Supreme Court would have given the judgement that they give? This was withheld from the Supreme Court, of course. So that entire judgement is also in question.”

The Supreme Court is currently hearing a batch of petitions seeking a review of its earlier verdict.

This week, Attorney General K K Venugopal on behalf of the centre, not only cited these documents – marked secret and classified – as illegally obtained, but also said that the newspaper is guilty under the Official Secrets Act, and of contempt of court for publishing details from said documents and thus endangering national security.

On the basis of this, he sought the dismissal of the review petitions and raised objections to petitioner Prashant Bhushan’s arguments that were based on the articles published in The Hindu.

Following this line of argument, the Opposition doubled down on its attack on the Centre, questioning its capability to defend the country, when it can’t hold on to crucial defence-related documents.

Others including CPI (M) general secreatry Sitaram Yechury, CPI leader D Raja and TMC MP Dinesh Trivedi demanded an immediate investigation into the AG’s claims, and into the Prime Minister himself, based on the internal note. This brings us at a juncture of a legal conundrum.

Can stolen documents be relied upon as admissible proof?

Former Additional Solicitor General and senior advocate Indira Jaising agreed with the oral observation made by Chief Justice of India (CJI) Ranjan Gogoi that even stolen evidence could be looked into, depending upon its relevance.

During the hearing, the CJI had 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”.

That said, The Hindu is almost certainly in the clear with reference to the charges of violating the Official Secrets Act.

Senior advocate and constitutional expert Dushyant Dave explains that the publication of the documents related to the Rafale deal do not amount to a violation, as ministers including the PM and several officers of the Air Force had repeatedly gone to the press with selective documents to justify their stand.

How The Hindu responded

Exonerating his reportage and his paper’s editorial decision, The Hindu Publishing Group Chairman N Ram said, “What we have done is completely protected under article 19 (1) (a) of the Indian constitution – freedom of speech and expression – and also under the relevant sections of the Right to Information Act, specifically, its section 8 (1) (i) and section 8 (2), which clearly protects this.”

Ram said on Wednesday that the documents were published in public interest because details were withheld or covered up, and no amount of pressure would make him divulge the identity of the confidential sources who provided them.

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves,” the veteran journalist told PTI.

?… It is the duty of the press – through investigative journalism – to bring out relevant information or issues of great importance for the public interest,” he added.

Ram has repeatedly attacked the most salient discrepancies in Modi’s final deal with the French government — the increase in Rafale’s price, how the government bypassed mandated procedures, that fact that the French took advantage of parallel parleys by the PMO that weakened Indian team’s position, why the government did not want an escrow account, why the deal was not on better terms than the UPA-era offer.

Read more: Explainer: A-Z of Rafale controversy

However, he pointed out that The Hindu had exercised due diligence and has held back seminal information, for example, the 13 India Specific Enhancements which is believed to have hiked the priced of each jet by almost Rs 1000 crore. Ram felt that “there was no need to publish this, because it was not strictly relevant to the investigative articles being published and also because the government was saying this technical information was highly sensitive, it may help the interests of adversaries and may cause harm.” 

Here’s why it matters

The first direct altercation between the Centre and a reputed media organisation which once uncovered the Bofors scam with the same investigative ethos and journalistic standards, suggests that the Rafale controversy is far from over. It also suggests that the Centre may be willing to admit small failures to cover up a potentially devastating lie and escape further scrutiny.

The revival of this issue before the upcoming general elections stands to seriously dent BJP’s prospects of staging a return.

Rashtriya Janata Dal Rajya Sabha member Manoj Jha has called the BJP-led NDA alliance “the weakest government that can’t keep the country safe”. “This tells you very clearly why the PM and his team were blocking possibility of JPC [Joint Parliamentary Committe]. You can’t cover corruption under pretext of national security,” he said.

CPI leader D. Raja told The Hindu that instead of shooting the messenger the government should respond to the message. “It is shameful that the Attorney General is telling the apex court that the files have been stolen. Is the chowkidaar not able to protect the files? 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 the PM is not able to respond to issues in public domain?,” he said.

The Editors Guild of India also condemned the AG’s remarks, and the Centre’s reprehensible attempt to arm-twist the media with the Official Secrets Act. Denouncing threats against reporters, the guild urged the government to refrain from any action that might undermine freedom of the press.

This sort of a blame game also calls for the immediate abolishment of the Official Secrets Act, a piece of colonial legislation, which is anti-democratic and has rarely been used against publications in independent India, especially to stall investigative efforts by the media.

The Hindu, meanwhile, plans to continue its ongoing investigation and publish honest scathing pieces on the deal, as it unfolds inside and outside court.

Prarthana Mitra is a Staff Writer at Qrius

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