Up in thin air

There is a little surprise, now, every time when Rafale is mentioned in the dailies, occasionally with a fresh turn. The outcry about the alleged Rafale scam has only grown ever since a controversy regarding the pricing of the fighter jet from Dassault surfaced. Hearing a review petition of the Supreme Court verdict on Rafale – where the Centre was given a clean chit back in December – filed by the trio of Prashant Bhushan, Arun Shourie, and Yashwant Sinha saw yet another episode on Thursday. This time, the Attorney General KK Venugopal, appearing for the Centre, stated a totally new reason for concealing the price of Rafale. Much to everyone's curiosity, the AG stated how Rafale's price has been kept a secret to prevent other countries, which have also bought the fighter jet from France, from questioning France as to why the jets were sold cheaper to India. In his words, AG then affirmed how this was also the reason why CAG's report on the pricing detail was a redacted version. Preparing an official report with an omission, and that too a crucial one, in itself seems dubious. On top of that, providing inaccurate information to the Supreme Court back in December based on which the apex court pronounced the 'deal' genuine seems like a gamble on Centre's part. Though, one which may have been jeopardised following the revelation of leaked documents from the Defence Ministry. It was the sensitive documents made available in the public domain through investigative journalism by The Hindu which brought everyone's attention back to Rafale. While Rahul Gandhi had proactively pursued his accusations of corruption, openly citing how Rafale deal was a scam, it was the sensitive documents revealing parallel negotiations held by the PMO which finally gave some substance to Rahul's constant and abject criticism.

Though the country swung into solidarity following the Pulwama massacre and ensuing Balakot Air Strike, the review petition filed with these very "stolen" documents brought everyone back to the shore. This time though, the accusations came strongly since the "stolen" documents, which the Centre later clarified were actually photocopied, solidified the argument presented by Bhushan and others. Venugopal's argument of how the Official Secrets Act (OSA) was violated by the petitioners and that the stolen or photocopied documents could not be attached to the case. AG's argument of the colonial-era OSA was, however, sidelined by the apex court. Justice KM Joseph of the three-judge bench stated that by enacting the RTI Act, Parliament had brought a complete revolution in information sharing by the government in matters of public interest. Repeated dissent showcased by the AG regarding the attachment of the leaked documents was countered by the petitioners in the New York Times case. The publication of 'Pentagon papers' by The New York Times relating to the Vietnam War had seen the US Courts reject the Privilege claim cited by the US government. The Supreme Court put forward its view that file notings relating to alleged corruption or rights violations cannot be regarded as a privileged document, and the government's claim that certain Rafale-related documents were protected under OSA was prima facie not maintainable. Justice Joseph informed AG that RTI's enactment had made the colonial-era law of Official Secrets Act lose its "sanctity". Maintaining that the RTI Act, 2005 has an overriding effect on OSA; "In cases relating to corruption and human rights violations, public interests outweigh official secrets. Even sensitive organisations like defence, intelligence and others have to disclose information," Joseph observed. The unconvinced Supreme Court reserved its verdict on Centre's preliminary objection to attaching sensitive defence documents to the review petition as the judgement on the same is expected after a week. Had the Lokpal being appointed under the Modi term, an investigation could have been initiated but since the ombudsman is yet to be named, Rafale case can be looked into by a Joint Parliamentary Committee. If not that, then at least a court-monitored CBI probe. The judgement over the Rafale controversy still seems a far cry but at least the apex court can review the official documents, around which the review petitions rotate, and move the investigation forward. Rafale, nevertheless, continues to feature in the news, though not for its prowess, unfortunately.