As the Supreme Court asked the Attorney General, if the documents are genuine, does it matter if they are stolen?

At one point, especially after the CAG report, it appeared the government had weathered the worst of the Rafale controversy. Ideally, there could have been no comparison between the UPA’s Rafale deal and that of the NDA since, despite 10 long years of negotiations, there was no UPA deal; it was just an unending conversation and merely a statement of intent. The deal was stuck on costs since the Indian partner – the public sector HAL – was going to produce the aircraft at a higher cost than Dassault in France and, more important, Dassault was not willing to stand guarantee for the aircraft HAL produced even though these would be under license. The fact that the UPA wasn’t able to sign a deal while the Indian Air Force found its fleet rapidly depleting would, in normal circumstances, be enough to ensure the Congress party kept quiet on the deal. Indeed, the recent statement by the then defence minister AK Antony, that he had intentionally delayed the deal in the national interest – he has not explained what he meant – makes the UPA’s position even more untenable since the story is no longer just one of the usual delays in defence procurement, it is a lot more worrying.

Despite this, however, the CAG made some assumptions in order to compare the NDA’s deal and the UPA’s non-deal, and concluded that the NDA’s was a bit cheaper than the UPA’s despite the number of aircraft being much smaller – usually, smaller deals cost more. While some have argued that the assumptions made by the CAG for this exercise are incorrect, in times when few have the patience to hear detailed arguments, the headline is what really matters, and that favoured the NDA.

Given this, and the fact that The Hindu had published stories critical of the Rafale deal even earlier, it is indeed odd that Attorney General KK Venugopal should now ask the Supreme Court to not consider the latest story because it was based on stolen documents; he even said the government may file a case under the Official Secrets Act (OSA) since stolen official papers were used. Not surprisingly, the judges were quite caustic and asked him why stolen papers shouldn’t be used if they shed new light on the matter. One judge even asked Venugopal whether the courts should refuse to look at documents that proved a person’s innocence just because the documents were stolen. Such a defence, to even those sympathetic to the government’s dealings in the Rafale case, indicates that the government has something to hide. In the past, in fact, when The Hindu published a story last month suggesting irregularities, the defence minister had given a convincing reply without bringing in the allegations that the documents were stolen. Indeed, the Attorney General should be asked to name a single case of corruption where the documents used to prove the case were not ‘confidential’ government files and which, going by his stance, should have resulted in arrests under the OSA. And if national security – another tag that is being invoked – is to be used each time a journalist publishes government documents, surely this would apply to other corruption cases as well, including Bofors? More so when even fairly routine papers are marked classified or top secret.

Apart from the fact that it is not a journalist’s job to protect the government’s interest – in exposing official lies, the journalist is answerable to a larger cause, that of society or the country – the Attorney General should have kept in mind that, over time, governments all over the world including India are moving towards removing the veil of secrecy that covered most official dealings; India’s Right to Information attempts to ensure citizens have enough information to expose the wrongdoings of officials. Sadly, it is not just the BJP – though it stands exposed right now – most political parties speak in different voices at different times on laws like official secrets or sedition; they want them scrapped when they are in the opposition but use them quite liberally when they are in power.

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