The Supreme Court’s order rejecting the government’s objections on the admissibility of some documents presented to the court in support of a petition for review of its earlier judgement in the Rafale deal is a setback to the government. The government had first told the court that the documents were “stolen” material and so could not be accepted as evidence. It also said that the matter involved national security and secrecy laws. Attorney-General KK Venugopal had first told the court that the documents had been stolen from the government’s records but later softened the position by claiming that they had been photocopied. They had been published by The Hindu as part of some articles which sought to expose irregularities in the Rafale aircraft purchase. The government even issued a threat of criminal action under the Official Secrets Act to the publication. 

The court has not only affirmed a judicial norm, and placed transparency and public interest over secrecy and privilege, but also foiled the government’s attempt to prevent a review of the court’s earlier order on the Rafale deal, which was based on misleading and incomplete information submitted by the government to the court, in the light of new evidence. The three-judge bench unanimously rejected the government’s contention. The court had at the hearing stage itself indicated that it did not agree with the government’s arguments based on “theft’’, “secrecy’’ and “national security’’ when it queried whether these could be invoked to cover up corruption and other crimes. The court also observed that there was no legal bar on the consideration of stolen material as evidence. There are precedents of courts accepting such documents as evidence in many important cases. The courts have also allowed publication of unauthorised documents by the media and supported and protected their freedom to do so. 

It is significant that the court will now adjudicate the review petitions in the light of the documents which were submitted by the petitioners and have been admitted by the court. The court had rejected the petitions seeking a court-monitored probe into the Rafale deal on the ground that there was “no occasion to doubt the decision-making process’’. But the documents seek to prove that the normal process of decision-making was not adhered to and there were deviations from it. It has also been pointed out that some of the claims made by the government in its submissions to the court had been proved incorrect, and new information has come to light. It would certainly have been wrong if all available information were not taken into consideration in deciding such an important case.