The Supreme Court has agreed to allow petitions challenging the Rafale deal based on defence ministry documents accessed by The Hindu newspaper. The Modi government had threatened to invoke the Official Secrets Act against the publication, saying the documents had been ‘stolen’.
ThePrint asks: SC order on ‘stolen’ documents: Did Modi govt miscalculate by being opaque on Rafale deal?
Court rejected an argument of the govt, never said Rafale deal process was opaque
Sudesh Verma
Spokesperson, BJP
Stolen documents procured from unknown sources were produced before the Supreme Court in the Rafale case.
The government argued that these documents were stolen and should not be taken into consideration because the documents violated the Official Secrets Act. The court has not taken cognisance of our argument and has decided to look into these documents while reviewing its own judgement. Review is a normal process of the court and one cannot see victory or defeat in this.
The decision should not be seen as an indictment of government stand on the Rafale deal, it is merely the negation of a technical argument. The judgment of the Supreme Court on the issue of pricing, procedure or offset wherein it did not find any fault stays. The court had earlier already said there were no problems in these. Now, a review will take place and we will wait for the court’s decisions.
The court is well within its rights to reject an argument presented by the government when it comes to evidence. But it never said the process was opaque.
The Rafale deal, no matter how much Rahul Gandhi says, is not a major electoral issue – although the Congress tried its best to poison the minds of the electorate. People believe what PM Narendra Modi has said on the issue and the verdict given by the Supreme Court.
Rajiv Gandhi’s errors should’ve taught BJP not to act brazenly on Rafale
Rasheed Kidwai
Political analyst
The Supreme Court order on “stolen” Rafale documents is a setback for the Narendra Modi government that has creatively and carefully tried to blur the fine distinction between the Indian state and the government of India.
Any voice, gesture, or act detrimental to the government of the day runs the risk of being dubbed anti-national, seditious and in violation of the Official Secrets Act. The Supreme Court observations are, therefore, encouraging for the Indian media.
The Modi government has used the December Supreme Court verdict on Rafale in a big way to blunt the opposition criticism. The reopening of the case can potentially boomerang for the Modi government when voting starts in a few hours from now. It will be interesting to see how Modi and the BJP respond to Supreme Court’s observations.
Modi government’s handling of the Rafale case has been opaque and brazen. If no wrongdoing took place, the government would have acted and sounded more reasonable when it was asked questions by the media. It would not have sought refuge behind the Official Secrets Act and dubbed documents accessed by a section of credible media as “stolen”.
Electoral success or mandate does not empower any government to act brazenly. This was a mistake Rajiv Gandhi had made in great measure and ideally, it should have served as a lesson for all those who had opposed Rajiv Gandhi and the Congress tooth and nail then.
Also read: SC will examine ‘stolen’ Rafale papers, rejects Modi govt objection to their use
In over-politicised times, transparency in defence imports helps cause of national security
Saurav Jha
Chief Editor, Delhi Defence Review
I have always believed that greater transparency in defence deals will not be prejudicial to the cause of national security.
Of course, there are instances where it may not be in the best interests of national security to give out financial details. The procurement of munitions and specific sub-systems could be considered as examples of this, since the idea would be to not let adversaries gauge inventory size and readiness easily.
However, when dealing with the import of major platforms such as the Rafale jets, the contours of which are highlighted in the media anyway and numbers are known, details such as flyaway unit cost and some other metrics can always be made available in the interests of public scrutiny. For instance, the French themselves give out unit costs for the Rafale fighter jets procured by their air force.
Instead of hindering the process of procurement, such transparency can actually accelerate the process. As this Rafale episode shows, it is perhaps better to put forth the facts of the case up front so that the matter can be resolved in the courts more readily and procurement is not delayed.
In these over-politicised times, transparency in multi-billion dollar defence imports will probably do more to aid the cause of national security than hinder it.
Supreme Court order has paved way for inquiry & upheld sanctity of investigative journalism
Pawan Khera
National Spokesperson, Congress
The Supreme Court’s rejection of the Modi government’s plea on ‘stolen documents’ has paved the way for an inquiry into the murky Rafale deal. It has also upheld the sanctity of investigative journalism.
The government in either its nervousness or arrogance admitted the veracity of the documents. It did not challenge the credentials of the documents per se, it only questioned the methods adopted by the reporter to obtain the documents.
The fact that there were parallel negotiations going on between the PMO/NSA and the French; the fact that the Indian Negotiating Team objected to these parallel negotiations; the fact that the Defence Procurement Procedure 2013 was amended to provide exemptions to the French are some of the facts concealed by the government in the Supreme Court and also in Parliament.
The Modi government was never forthcoming in its responses to any question on Rafale. Tax payers have a right to know how is their money spent; Indians have a right to know if their government is ensuring timely availability of defence equipment to keep India secure; opposition has a duty to ask these questions. And no one becomes anti-national just for asking questions.
Also read: Is the Modi govt bungling on Rafale or are secrecy laws critical for defence deals?
Modi govt was wrongly advised to take shelter under Official Secrets Act
V.K. Ohri
Senior advocate, Delhi High Court
Unfortunately, the Modi government was wrongly advised to take shelter under the Official Secrets Act.
Official Secrets Act doesn’t come into the picture because it is related to the armed forces not purchase, which is a commercial deal. If documents related to the location of the military, their arrangements, or their secret files are exposed, then the act is invoked. Thus, it is wrong to invoke it in the Rafale deal.
The government miscalculated and thought they will get away with it. But the Supreme Court knows what the act is and that is why the Modi government had to face the music.
The Modi government should have come clean from the start because these documents are commercial in nature and most of its details are out and available.
The Supreme Court order stopped the government’s attempt to curtail media. The Rafale deal details will have a big impact on the polls. Now, it depends on how political parties want to use it.
The judgements are on expected lines. Both judgements have highlighted the fact that the three documents are already in the public domain. This negates all the arguments in favour of the privilege of the state. However, the last paragraph of the judgement of honourable CJI is most important. The relevance of these documents to the petition is yet to be examined, so also merits or demerits of the petition. The matter stands on even keel. My own view is that these three documents fail the test of relevance, as they do not reflect any criminality. They merely reflect a minority view point within the negotiating team- it is just an opinion, nothing more. In the process of negotiations, there could be more than one view and arguments for and against. Selective production of only three documents cannot counter all the facts contained in the CAG report. CAG report is comprehensive, whereas these documents are only selective. They prove nothing. So far, the petitioners have not produced any document supporting its claim of involvement of corruption. Where is the quid pro quo or money trail? Foreget documentary evidence, there is not even a hint of it.
With the benefit of hindsight, it can be submitted – with profound respect – that the December judgment was a little hasty, peremptory. This was a matter of profound national importance, with huge financial implications. Having agreed to hear it at length, the Court may have been pleased to render a decisive verdict. It took a slightly technical view of the matter, quoting an Article of the Constitution that limits the scope of such intervention. It is very gracious of it to have now agreed to hear the matter afresh, taking note of certain important documents that have a bearing on the decision making process. Given the surcharged political mood, it alone can bring closure to this issue. If there are some additional files that are still not before it, it could seek a statement, on affidavit, from MoD that all papers that contain an official record on the processing of this transaction have now been placed before it.