Sceptical argument

On Saturday, the government filed its response to petitions seeking review of the Supreme Court's December 14, 2018 order upholding the Rafale aircraft deal. Though the government had sought four weeks time, the court had only allowed four days before the matter was due to be taken up today. Four week's time seems like an inflated request especially when the government managed to deliver its response in just four days as per the directive of the apex court. In its affidavit, the government argued that "the monitoring of the progress made by the PMO of this government-to-government process cannot be construed as interference or parallel negotiations". Now the government cited a supervisory provision as exercised by the Prime Minister's Office which cannot be considered, say by any stretch of the imagination, as parallel negotiation. A straight answer to allegations citing active involvement of PMO in the fighter-jet deal corroborated by MoD (Ministry of Defence) notes which were published by The Hindu and clearly outlined how "parallel parleys" had "weakened the negotiating position of MoD and the Indian negotiation team". So if the review petitioners had a leaked MoD note, on which the government made several attempts to prevent its admissibility, it was only natural for the government to put forward the then Defence Minister Manohar Parrikar's words that "it appears that PMO and French President's office are monitoring the progress of the issues, which was an outcome of the summit meetings". In a way, both of these pieces of literature are mere "selective" remarks. But the government asserted that these "selective" reports, based on some "incomplete internal file notings, procured unauthorisedly and illegally", did not reflect the final decision of the competent authority. Well, it is definitely up to the apex court bench to decide how incomplete the internal file notings are, or seek the remaining part which would aid in establishing the complete note. The final decision of the competent authority would only be revealed once the complete notings are available and since part of those has already been admitted by the court for the review petition, legally or illegally at this point is irrelevant, there should not be any trouble in submitting the entire of it on government's part. Also because it is the government who has argued that incomplete notings did not reflect the final decision. But it further asserted that the incomplete notings could not form the basis for a review petition. While it is invited to submit anything it has to, reminding the apex court of what 'could not' form the basis for a review petition currently remains out of the government's hands. That is for the bench to decide. Further, the government, specifically disappointed due to its unsuccessful repeated attempts to prevent the court from admitting Rafale purchase documents published in the media for review petitions, cited the broader picture. It said that the April 10 order of the apex court to hear the review petitions based on media publishings of leaked documents implies that any secret document can be obtained through any means and put in the public domain without attracting penal action. The government exemplified its understanding by citing how "this could lead to the revelation of all closely guarded State Secrets pertaining to space, nuclear installations, strategic defence capabilities, operational deployment of forces, intelligence resources in the country and outside, counter-terrorism, counter-insurgency measures, etc. This could have implications in the financial sector also if, say budget proposals are published before they are presented in Parliament." It cautioned that "such disclosures of secret government information will have grave repercussions on the very existence of the Indian State". The government's apprehensions regarding the misuse of the court's action in Rafale review petition hearing which set a specific precedent might be real, but not relevant. The learned bench in the April 10 order had clearly outlined that "there is no provision in OSA and no such provision in any other statute has been brought to our notice by which Parliament has vested power in the executive arm to restrain the publication of documents marked secret or from placing such documents before a court of law which may have been called upon to adjudicate a legal issue". In simple terms, it meant that the court is simply facilitating the matter which, much to the government's discomfort, falls under legal purview. The media publishings have been included to aid in the judicial proceedings and not because a secret had to be disclosed to the general public. There is no reason for people to steal secret state documents and publish them unless those are controversial and involve instance of corruption or any other illicit activity, which then deserves to be in the public light. As for penal action, stealing is in itself punishable and hence stealing secret documents, in any case, attracts penal action without denial. The government can go ahead and investigate how the MoD documents got leaked to media but again, that remains irrelevant to the case. There has been no such recorded instance of disclosures of secret government information being procured through illicit means to be published in the media or produced before a court without any controversy swirling around it like in the case of Rafale.

While citing that the scope of the review petition is "extremely limited", the government apprised the apex court that its December 14 judgement has no apparent error warranting its review. Having objected the admissibility of the leaked documents, the government had brought OSA to its rescue. When the court sidelined any privilege that the government might be seeking under OSA, the government's latest response views it as "incomplete internal file notings" and points to the "selective" reports that the petitioners have used in the review petition, citing how the complete picture is not clear through those. It also cautions ramifications of allowing such documents to be considered for the case. Arguments made by the government, while not being wrong, sounds mere wordplay. From OSA to "incomplete" documents, the point has been to not allow review petitions on SC's December 14 order which gave Rafale deal a clean chit. The government is viewing the court as someone who, through the review petition, is allowing people to take advantage of the provisions that remain exclusive to Rafale case. The government has for long objected the leaked documents instead of explaining those. Even in its affidavit, it cites what the then defence minister Manohar Parrikar had noted in context to PMO and French President's office monitoring the deal but not what the leaked documents stated about "parallel parleys". One wonders what the entire picture is regarding the competent authority because bits and pieces of something will not help in procuring truth. Today's proceedings will definitely throw light on the incomplete file notings or the entire thread of exchanges between MoD and PMO if the government finds itself ready to apprise the court.