New Delhi
In a setback to the NDA government on the eve of the first phase of Lok Sabha elections, the Supreme Court today rejected its objections and decided to rely on fresh documents to decide a review petition in the Rafale deal case.

“There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law, which may have been called upon to adjudicate a legal issue concerning the parties,” said a Bench of Chief Justice of India Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph.

The NDA government had signed a deal with France in 2016 for the purchase of 36 Rafale fighter jets manufactured by Dassault Aviation at a cost of Rs 59,000 crore in flyaway condition. Alleging irregularities, Sinha, Shourie and Bhushan had sought a probe into the deal.

But the Bench had on December 14 dismissed the petition, holding there was no commercial favouritism and occasion to “really doubt the decision-making process” warranting setting aside of the contract.

The controversy in the review petition relates to three documents an eight­page note dated June 1, 2016, written by three members of Indian Negotiating Team for Rafale deal and two “secret” documents Note­18 of the Ministry of Defence and Note­10 written by Ministry of Defence Deputy Secretary SK Sharma relied upon in the review petition. Attorney General KK Venugopal had questioned the admissibility of the three documents “stolen” from the MoD and relied upon by Sinha, Shourie and Bhushan in their review petition, contending it amounted to a crime under the Official Secrets Act.

The government had claimed privilege over these documents and said even RTI Act didn’t allow such documents to be shared. Venugopal had also claimed that certain State actions were outside the purview ofjudicial   review   and   which   lie   within   the   political   domain. But the three judges on the Bench unanimously rejected the government’s objections. “The test of admissibility of   evidence   lies   in   its   relevancy,  unless  there   is   an   express   or necessarily  implied prohibition  in   the  Constitution  or  other  law evidence obtained as a result of illegal search or seizure is not liable to be shut out,”  it said, citing a SC verdict.

“Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872, relates to unpublished public records. As already noticed,   the three documents have been published in different editions of The Hindu,” it said.

“That apart… a claim of immunity against disclosure under Section 123 of the Indian Evidence Act 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 though the said power has to be sparingly exercised,” it noted.