The Supreme Court on Wednesday rejected the Central Government’s charge that documents related to the purchase of 36 Rafale fighter jets were stolen from the Defence Ministry and hence should not be a part of the review petition moved in the case. The Centre had objected to three such documents being taken on record in the case alleging that the petitioners had made unauthorised copies of the said documents, which amounted to violation of the Official Secrets Act.

The review petition, the three-judge bench led by Chief Justice of India (CJI) Ranjan Gogoi said, “will be adjudicated on their own merit by taking into account the relevance of the contents of the three documents”.

The three documents in question are an eight-page note written by the three members of an Indian Negotiating Team on June 1, 2016, a note written by the Ministry of Defence, and another written by a deputy secretary of the Ministry of Defence. The details contained in these notes were published by national daily The Hindu. The same documents were later used by the petitioners which include former BJP ministers Yashwant Sinha and Arun Shourie, and senior advocate Prashant Bhushan.

In its judgment, the top court said that the newspaper had the right to publish those documents as the “right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. There was no law enacted by the parliament which specifically prohibited the publication of these documents, the CJI said in his judgment.

On December 14 last year, the apex court had by a unanimous verdict said there was “no occasion to really doubt” the procurement process of 36 Rafale fighter jets “even if minor deviations have occurred”. The court had then said that it did not want to go into the sensitive issue of the purchase of 36 defence aircraft by the Indian government.

Following the judgment, Sinha, Shourie and Bhushan had moved review petitions in the top court claiming that the central government had made false claims in its affidavits and that judgment had "relied upon patently incorrect claims made by the government in an unsigned note given in a sealed cover". The news reports published by The Hindu were also included later as part of fresh evidence that there was misdoing in the purchase of the fighter jet.

During the review hearing in the case, the central government had informed the top court that the documents had been stolen either by the current or former employees of the ministry of defence and that government was planning to take “criminal action” against the newspapers which published the stories and the petitioner who used it in his petition. The government had also claimed privilege for the documents as they were related to national security. In its judgment, however, the top court brushed aside this plea of the government as well.

“A claim of immunity against disclosure…has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure, the court may even inspect the document in question,” the CJI said in his judgement, adding that such a power had to be sparingly exercised.

The other part of the judgment, authored by Justice K M Joseph, concurs with the judgement of the CJI and Justice Sanjay Kishan Kaul. In his judgment, Justice Joseph has reiterated that the state cannot claim privilege as they had never questioned the correctness of the documents.

Reacting to the judgment, the Congress said that the apex court’s judgement had demolished the lie of self-pronounced clean chit used by Prime Minister Narendra Modi and that the truth of “layers of corruption in the Rafale Scam” had finally caught up with him.

“Today, the Supreme Court has blown the last lid of the lies of the Prime Minister on Rafale by saying that evidentiary value of the document will be seen and not the source of the document and the evidentiary value is that there is blatant theft, violation of procedure, corruption and compromising national interest in the entire Rafale deal,” Randeep Singh Surjewala, the in-charge of communications department of the party said.

The Ministry of Defence in its response has, however, maintained that the documents in question present a selective and incomplete picture of internal secret deliberations related to national security and defence.

“The documents presented by the petitioners are failing to bring out how the issues were addressed and resolved and necessary approvals of the competent authorities are taken. These are selective and incomplete representation of facts and records by the petitioners,” the ministry said in a statement.