SC rejects preliminary objections by govt, to examine Rafale review pleas on merits on the basis of published documents

A Rafale aircraft performs at the biennial air show Aero India 2019 at the Yelahanka Air Force Station near Bengaluru on Februray 20, 2019.   | Photo Credit: K. Bhagya Prakash

In an unanimous judgment, the Supreme Court on Wednesday decided to hear the review petitions on the Rafale fighter aircraft deal on merits on the basis of the documents published in the media, including The Hindu, on the disparity in pricing details of the 36 jets, objections raised by the Indian negotiating team to parallel negotiations conducted by the Prime Minister's Office, among others.

The Bench led by Chief Justice of India (CJI) Ranjan Gogoi dismissed the preliminary objections raised by the Union government claiming privilege over the Rafale documents and projecting the publication of the documents as part of a conspiracy following the leak of these defence purchase records from the Ministry of Defence.

Attorney General K.K. Venugopal submitted that the review petitions were based on “stolen” Rafale documents, which are not admissible in evidence.


“We deem it proper to dismiss the preliminary objections to hold and affirm that the review petitions will be adjudicated on their merits on the basis of the relevance of the three documents whose admissibility was questioned by the respondents [government]),” Chief Justice Gogoi read out the operative portion of the judgment that he and Justice S.K. Kaul wrote.

Chief Justice Gogoi added that Justice K.M. Joseph had concurred with them in a separate judgment.

“He has also reached the same conclusion but in a different manner,” the CJI said. The dates of hearing the review petitions would be fixed later.

The case was reserved on March 14. The review petitions were filed against a December 14, 2018 judgement of the Supreme Court upholding the 36 Rafale jets deal.


The government wanted the court to refrain from examining the documents. It claimed that the documents were unauthorised photocopies of the originals kept in the Ministry of Defence and sneaked into the public domain.

National security at stake: govt

The government said national security was at stake and the leak of the documents amounted to offences under the Official Secrets Act.

The Centre had explained that the disclosure of Rafale prices had upset a “solemn undertaking” given to France to keep the price of the jets a secret.

But Justice Joseph had countered the government version by drawing the latter’s attention to the Right to Information Act (RTI) of 2005. The judge said the information law has revolutionised governance and overpowered notions of secrecy protected under the Official Secrets Act (OSA) of 1923.

On the last day of hearing, Justice Joseph made Mr. Venugopal read out Section 22 of the RTI Act declared RTI to have an “overriding effect” over the OSA. Section 24 mandates even security and intelligence organisations to disclose information on corruption and human rights violations. Finally, Section 8(2) compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests”.

Mr. Venugopal had defended that defence purchases dealt with the security of the State, which “supercedes everything else”.

To this, Justice Joseph said “Parliament has passed the RTI Act in 2005 and brought about a complete revolution, a complete change, let us not go back to what it was.”

As the court finally wrapped up the hearing, review petitioner and former Union Minister Arun Shourie, who was accompanied by his former colleague, Yashwant Sinha, said the government’s claims that the Rafale documents were stolen proved that they were genuine.

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Printable version | Sep 14, 2021 7:46:13 AM |

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