With Attorney General of India KK Venugopal revealing in open court that the contents of the note provided by Advocate Prashant Bhushan were “stolen” from the Defence Ministry, a fresh controversy has clouded the Rafale deal.

Although AG Venugopal has recently come out with a statement saying that he never alleged that the documents were “stolen”, his subsequent arguments made in court warrant a closer look.

Referring to news items published in The Hindu on the Rafale deal, the AG claimed that disclosure of the contents of the Defence Ministry note in those articles amounted to an offence under the Official Secrets Act. He thus stated that since the documents were not admissible by law, the review petition and perjury application ought to be dismissed on this ground alone.

While political fallout following the media expose is apparent, issues with respect to questions of National Security/ Official Secrets versus Freedom of Expression/Right to Information have cropped up before the Supreme Court.

The most relevant question before the Supreme Court is whether it can consider these documents while deciding the review petition in the Rafale deal case.

At first glance, as far as the admissibility of illegally obtained evidence is concerned, the issue is no longer the subject of debate.

The Supreme Court in RM Malkani vs State of Maharashtra (1972) considered the admissibility of evidence obtained in contravention of Section 25 of the Indian Telegraph Act. Holding that even illegally obtained evidence is admissible, a Division Bench led by Justice AN Ray observed,

“Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen.

The Judicial Committee in Kuruma, Son of Kanju v. R. dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained.

There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.”

The view found favour in the judgment rendered by a Constitution Bench of the Apex Court in Pooran Mal Etc vs Director Of Inspection (1974). This judgment states,

“It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in 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. In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of section 132 of the Income Tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized…”

These cases still hold ground on the issue. Interestingly, these cases and the ones referred to in them were instances when evidence was procured illegally by the government and was allowed to be used by the court of law to nail the accused.

In a nutshell, the law allows illegally procured information to be admissible as evidence if such information is otherwise not eclipsed by the Constitution or any other law in force. As far as the power of the Supreme Court to appreciate evidence is concerned, Article 142 of the Constitution of India empowers it to pass any decree or order as may be necessary for doing complete justice among the parties. The same is supported by the Supreme Court Rules, 2013.

Order XXIX of the Rules mentions that every pleading shall “contain, and contain only” a statement in a concise form of the material facts on, but not the evidence by which those facts are to be proved.

Order XXXVIII which pertains to exercise of power under Article 32, states that at the hearing of the rule nisi, if the Court deems it fit, it may take evidence or cause such evidence to be taken in any manner. Furthermore, Order LV on the inherent powers of the Supreme Court empowers the Supreme Court with unfettered power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process of the Court.

As claimed by Prashant Bhushan during the hearing, documents from whistleblowers, which were not procured ‘legally’, were also considered by the Supreme Court as evidence in the 2G and Coal Scam cases.

The submission by AG Venugopal that such evidence can be used only if the source of such documents is disclosed, seems to have no basis in precedent or law.

This brings us to the issue of the documents being an ‘official secret’.

The Official Secrets Act was enacted in 1923 as an anti-espionage law. Section 3 of the Act provides for punishment for obtaining any note, document or information etc which relates to a matter whose disclosure is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States.

Another imperial law, the Evidence Act of 1872, also makes certain evidence as to affairs of State inadmissible before a court of law. Section 123 of the Act states that any evidence which is derived from unpublished official records relating to any affairs of State, unless done so with the permission of the officer concerned, are not admissible as evidence.

A decision with respect to granting the status of ‘official secret’ is taken by the Ministry of Home Affairs. However, in spite of requests for information under the Right to Information Act, the Ministry has kept the criteria for the same confidential. Therefore, if the documents pertaining to the Rafale deal are indeed protected under the Official Secrets Act, their admissibility as evidence before the Supreme Court could be a matter of debate.

Does it mean that Official Secrets shall forever be a secret?

The answer, in principle, could be found in the Right to Information Act, 2005.

While Section 8(1) of the Act lists instances of exemptions from disclosure in terms of the Act, Section 8(2) states that notwithstanding anything in the Official Secrets Act, information which would prejudicially affect the sovereignty and integrity of India, the security etc may be revealed if public interest in disclosure outweighs the harm to the protected interests.

Although Bhushan has conceded to Chief Justice Ranjan Gogoi’s suggestion to hear the case minus those documents, one has to await the subsequent hearings on the Rafale review to see if the issue of inadmissibility of ‘stolen official secrets’ is conclusively determined.