The Centre, which accused former Union ministers Yashwant Sinha, Arun Shourie and lawyer Prashant Bhushan of relying on stolen documents to seek review of judgement dismissing petitions on the Rafale fighter jet deal, faced searching queries from the Supreme Court that also asked, "are these documents untouchable" for consideration by courts.
"We can understand you saying that petitioners came with unclean hands. That they got the documents through doubtful sources. But it is another thing to say that the court cannot consider these documents at all. That they are untouchable," a bench headed by Chief Justice Ranjan Gogoi observed.
The remarks by the bench came when Attorney General KK Venugopal insisted that the review petitions and a perjury application filed in the matter has to be dismissed as the petitioners were also averse to disclosing the sources of the documents which were stolen from the Defence Ministry.
The high voltage hearing witnessed the bench, also comprising Justices SK Kaul and KM Joseph, asking the Centre: "When there is an allegation of corruption, can the government take shelter under national security?
"If an act of corruption is committed in Rafale deal, will govt take shelter behind Official Secrets Act? I (CJI) am not saying it is committed, but if it is then the government cannot take shelter behind OSA."
It further said it is settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.
During the hearing, the bench also mentioned the Bofors pay off scam and said, "There were allegations of corruption in Bofors. Now, will you say the same thing that a criminal court shouldn't look into any such document in that case? Here we have an open system."
The attorney general replied: "Yes, we have an extremely open system here. This is the only country where a court is examining a defence deal as if it is an administrative issue. No other court in any other country will do it."
The bench said if the documents were stolen, the government should put its own house in order.
"It is one thing to say that we should look at these documents with suspicion. But to say we can't even look at those documents may not be a correct submission in law," the bench observed.
The issue of stolen documents was raised by Venugopal when Bhushan submitted an eight-page note to the bench.
The attorney general said that contents of the documents were based on the stolen materials and the investigation is underway.
Venugopal drew the attention of the bench to the news item published in the daily 'The Hindu' on Wednesday and contended that such publication amounted to an offence under the Official Secrets Act.
He was referring to the Wednesday's news item 'No bank guarantees meant a more expensive new Rafale deal'.
"The strategy is to put out as a news item the day before the hearing or on the day of hearing so as to influence the hearing. Today also, The Hindu has published something. This by itself is contempt of court”, Venugopal alleged, adding that the review petitions and a perjury application has to be dismissed on this ground alone.
The hearing also saw the bench asking the Attorney General, "Can relevant evidence be cut out saying it is illegally obtained? Can’t stolen evidence be looked into if it is relevant?
Venugopal said: "They have come with a document which is stolen. Your Lordships might have your view on it but I have a different view."
The bench also gave an hypothetical situation that if an accused is having difficulty in proving his innocence, he steals a document and shows it to judge.
"The document clearly shows he is innocent. Should the judge not admit the document," the bench asked the Attorney General, who said here also disclosure of sources would come to play.
This led bench to say, "If your submission is that petitioners have not come bona fide, then that’s different. But can you say that the document is completely not touchable?"
The Attorney General also said the entire matter was given a political colour, and submitted that there was a need for maintaining restraint by the apex court.