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After The Hindu newspaper’s latest revelation on the Rafale deal, Attorney General K.K. Venugopal told the Supreme Court that the documents were stolen from the defence ministry, and could invite punishment under the Official Secrets Act. The SC bench retorted by asking, “If an act of corruption is committed in the Rafale deal, will the government take shelter behind the Official Secrets Act?”

ThePrint asks: Is the Modi govt bungling on Rafale or are secrecy laws critical for defence deals?

Some executive decisions taken with deployment needs in mind do not have to be in public domain

Ratna Vishwanathan
Former Civil servant, Ministry of Defence

The issue of the allegedly ‘stolen’ documents from the defence ministry becoming central to the Supreme Court’s intervention on the Rafale deal seems like an act of grasping at straws.

Having said that, secrecy laws are important for defence deals for two reasons. Just like any other procurement, pricing is always a subject of negotiation and no two deals will have the same offerings. It will depend on buying relationships, numbers and a whole host of other business criteria.

What bears scrutiny is whether due process and procedures have been followed. And that is a matter of public information in the interest of transparency. The second reason is from a strategic perspective since certain executive decisions are taken keeping in mind commissioning and deployment requirements, which do not necessarily have to be in public domain.

The present issue around Rafale, however, has given rise to several questions — from process to procurement — and has become a convoluted conversation. Adding the issue of the stolen documents makes the waters murkier. And as the top court has rightly pointed out in its response to the AG’s submission, it will be stretching the argument to say that these facts cannot be used if the materials have a bearing on the issue.

Also read: With a new report on PMO’s role in Rafale negotiation, where does the story go from here?

In defence deals, leaks lead to corruption and malpractices and that affects national interest

Lt Gen P.R. Shankar (Retd)
Former director general of artillery

The Rafale deal is embroiled into procedural issues because adequate diligence was not done when the 126 Medium Multi-Role Combat Aircraft deal was converted into a deal for 36 Rafale jets. Because of this lack of due diligence, there seems to be no unanimity in how to approach the issue. The documents accessed by The Hindu newspaper are valid in my opinion.

There are adequate laws and regulations governing the handling of classified documents. No more special laws are required. The need is to enforce the existing laws. It has been a widely held belief among service officers that anything given to the ministry of defence (MoD) gets leaked. There are too many interests working in conflict with each other. The  defence ministry  has to sort out its internal procedures. Enforcement of existing rules and regulations is needed.

Adherence to laid down procedures in handling of classified information is especially very important in the MoD since it deals with matters of national security routinely. As far as the defence deals are concerned, security is important since leaks lead to corruption and malpractices and, most importantly, delay in adding capabilities that are in the nation’s interests.

Also read: With a new report on PMO’s role in Rafale negotiation, where does the story go from here?

Case against Rafale deal was built by the petitioners entirely on stolen documents

Anil Bakshi
Defence whistleblower

In this whole Rafale case, the opposition has created problems only for itself. After the latest petition in the Supreme Court, the Modi government will now surely file an FIR against the petitioners because the case was totally built on documents stolen from the defence ministry. Although the honourable court initially dismissed a couple of arguments presented by Attorney General K.K. Venugopal, in the end all the allegations put forward by the opposition fell flat on their face.

Laws around secrecy are very important in major defence deals, and they should be there. However, if the Supreme Court asks for a few documents that are relevant to any deal in defence, then they should be produced, while making sure that they are produced only for the judges and nobody else, not even to the petitioners.

Congress president Rahul Gandhi and others wanted the Rafale aircraft deal to turn into another Bofors, and change the course of the upcoming Lok Sabha elections in their favour. The opposition has stooped to a level where it has started pulling stars from the much-decorated cap of the Modi government. We are witnessing this new low of the opposition. The public will teach them a good lesson in the coming general elections.

Any news exposing Modi govt’s lack of transparency can’t just be classified under secrecy laws

Yusuf Unjhawala
Editor, Defence Forum India

The Modi government has been bungling on the Rafale deal from day one and it has gone downhill ever since. Its latest submission in the Supreme Court about the Rafale documents being “stolen” is a new low, worsened further by Attorney General K.K. Venugopal who told the apex court – “Some F-16s come and bomb us. What are we to do? Without Rafale, how can we resist them.”

This comment hurts the Indian Air Force, which is ready to protect India under all circumstances. IAF pilot Abhinandan Varthaman shot down an F-16 in a jet that is going to be retired from service very soon. India has a fleet that will dominate any air war with Pakistan. In fact, India bought the Mirage jets in 1982 to counter Pakistan’s purchase of the F-16. It was this jet that pounded Pakistani positions during the Kargil War and was also used in the Balakot strike. In fact, the F-16s were not used by Pakistan during the Kargil War because of IAF’s superior capabilities. Since then, India has upgraded its entire fleet with latest avionics and weaponry. This is how a MiG-21 could bring down an F-16.

Use of Official Secrets Act on media houses doesn’t cut. Leaks always happen. Everything can be then classified under OSA to stifle investigative journalism, especially when the government is not transparent. Most of the details on the Rafale — the price, its capabilities, the kind of weapons it can fire — are in public domain. What is to be kept secret are the finer points and nobody has asked for those.

The bungling and the politicisation of national security is hurting India. There needs to be a pause and serious rethinking by the Modi government as well as the opposition about how they address the issue of national security.

Details revealed weren’t top military secret, OSA being misused to threaten journalists

V.K. Ohri
Senior advocate, Delhi High Court

The Official Secrets Act cannot be invoked in the case of The Hindu’s reportage of the Rafale deal. None of the details that the reports mentioned were in any way breaching national security. Simple details like the pricing of the Rafale jets are already out in the open and can’t hurt the integrity and sovereignty of the country. Details that are not already out can be accessed through the RTI.

The fact that Attorney General K.K. Venugopal argued that the Rafale files were stolen doesn’t make any difference. The details revealed weren’t a top military secret.

This isn’t the first time that the OSA is being misused like this. The Act has been used in the past as well by governments to threaten newspapers. Long ago, Narendra Modi’s government in Gujarat had threatened The Indian Express with this very Act for publishing information on the Gujarat riots. Later, the case was dropped because the information was available in public domain anyway and the police had all the records.

These tactics are often used to try and threaten the journalists and stop them from publishing important information.

By Fatima Khan, journalist at ThePrint.

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  1. The Rafale deal would not have gone to the court, if only the govt were less adamant and agreed to for a joint parliamentary committee to examine the deal. The govt should have taken opposition into confidence about the deal. The details, like price, procedure followed in deciding it, could have been divulged to a committee of opposition parties on oath of secrecy. Such an amicable approach would have avoided all the unseemly atmosphere that has been created now. The govt is still not relenting. I feel it would make a big fool of itself.

  2. Mr modi is setting up congress i specially rahul gandhi. Rahul gandhi is banking his entire career on rafale. Just before the ekwction he will relase the documents and take away the only thing he has to fight . Like he set up iaf role . Earler bjp was reacting to all jibe from modi now congress is reacting to thw jibe by bkp. They have congress where they want him. As usual rahul gandhi is dum he dosent know that he is being led into trap. Hindu news paper which was earlier pro bjb mow has become anti bjp

  3. I think that the AG has erred in linking the issue to Official Secrets Act. The fact as disclosed by him is that the documents were stolen. Stolen means what? Are the originals missing or someone has surreptitiously copied them? In either case, the government officials/employees who were complicit in such an act need to be acted upon, not the journalist or petitioners. However, this bypasses the main issue, which is whether the ‘stolen’ documents are admissible in the court of law. They can be, if they are established as genuine, with due circumspection and caution. The court cannot be seen as encouraging such an act of ‘stealth’ of defence related documents. The AG however, must insist that these documents must be considered with conjunction with the CAG report. The petitioners may make selective use of documents to suit their convenience, but the CAG has already examined the matter in its entirety. The AG must fight the case based on facts and data as revealed in the CAG data. Taking recourse to the Official Secrecy Act to defend the case is not at all desirable. I must state that the Hindu articles are highly opinionated, one sided and based on wrong arithmetic. These are solely based on the minority opinion, without taking into account the arguments made by majority in support of the various decision made by the government. These articles, by no stretch of any imagination, establish criminality or corruption. I may quote one simple point. The government insisted in having 50% offset instead of statutory 30%. The Indian economy through the enhanced business activities of more than 30 Indian partners is certainly going to be benefited. How to factor in this benefit? In contrast, in case of acquisition of S-400 Russian missiles, costing about Rs.39000 crore (not an insignificant amount), offset is completely waived! No one is criticizing that decision! The Hindu is frowning on the waiver of bank guarantee cost, which was to be borne by the French company in the initial bid. But this amount was not, I repeat, was not included in the origin cost. Had some part of this benefit been passed on to India, this could have further lowered the price in the NDA deal. However, this doesn’t mean that NDA deal was not better than the UPA bid price. This conclusion is logically wrong. There could be plethora of opinions about how the deal should have been bargained. No legal action can be initiated based on such opinions. If we do that, this will contribute to fear psychosis and halt future acquisitions of defence equipments.

  4. It is always possible to separate operational matters, like the technical specifications of a weapons system, from purely commercial terms and conditions, which are even otherwise subject to normal CAG audit. Whether or not a bank guarantee should be obtained, and sharing at least half the savings if the manufacturer is not obliged to provide it, this is something that belongs in the public domain. Precedent is important in governance. This deal should be dealt with the way all others have in the past.

  5. India has always been subjected to the intrest divergence when it come to selection of nation interest and the politicial interest. Perspective of political parties has always been to retain power rather than making nation powerful. Rafale is the need of hour with Indian Airforce depleting airpower . Country’s first question should rather be why even after 19 year of Airforce demand we still dont have 4th gen MMCA? But unfortunately this question doesnt draw any incentive so no is bothered. IAF is still flying “coffins” with pride and that too again adversaries advance 4 and 4.5 generation jets. However there is a need to define some gray area for media and the defence procurement details. As the details of defense Deals not only affect the national interest but also could affect future procurement deal under government to government deals. Things covered under “secret act” is not individual secret that a person is hiding infact its national secret that need to be retained. However certain time period for secret claues has to be mentioned so the matter concerning it can be addressed once the due period get over. Even in current case political parties are involed in mudslinging not because they are worried about depleting IAF strength but its a anxiety for power or to be in power. Howsoever there has been many if and buts in the stand shown by the government which should have been addressed at the right time and right place.

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