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The Attorney General said the court that the government intends to prosecute the petitioners for relying on the stolen documents related to an ongoing case. The newspapers too relied on these documents while publishing an article, which is an offence under the Official Secrets Act. He also said the government considers initiating prosecution.
The Attorney General sought dismissal of the review petitions and all other connected petitions by raising a preliminary objection. Prashant Bhushan attempted to draw the court’s attention to an eight-page note containing the dissent of three of the seven members of the Indian Negotiating Team, who objected PMO interference in the deal.
The AG argued that the final call from the minister comes in subsequent to the opinions expressed by the Secretary followed by counter-views, and the Additional or Joint Secretary thereafter. Where the final decision was illegal, judicial review emerges. In the instant case, the notes bind nobody, and the Hindu published an article based on the first note alone, and the second note was not taken into account at all.
The Chief Justice of India said that Bhushan could say according to his wants, and it did not mean that the court takes all his statements into account. Justice KM Joseph asked the AG whether the judges should not read a word of the documents. The AG continued his arguments highlighting the extent of delay that may be caused if defence issues have to pass through the channel of parliament, TV Channels, newspapers and finally the court. Further, the AG emphasized that the price could not be disclosed at all, and the Hindu newspaper committed contempt of court by publishing an article right before the hearing of a sensitive case to influence the court.
The Chief Justice questioned the AG about the actions taken by the government so far as the leak of notes is concerned. The AG informed the court that the investigation was going on, and the status of the investigation would be brought to the notice of the court after lunch. The AG also asked the bench if the lordships were going to look into whether the action was taken or not by the government in this regard.
The Court asked whether it should look into the matter, and hear to decide subsequently. The court elucidated its presumption that the government would have taken some action since the matter was already in the public domain. Subsequently, the court asked if the AG intends to state notwithstanding the fact that the matter is in the public domain.
The AG continued to argue that the people behind the theft of documents were guilty of exposing the privileged documents, thereby attracting the official secrets act and the IPC. The Chief Justice questioned whether the AG was taking a preliminary objection, to which the AG replied affirmatively.
As the Bench rose for lunch, Prashant Bhushan argued that the RTI Act overruled the Official Secrets Act considering section 8(1)(i) of the former. Therefore, all notes of a like nature should be disclosed. The Chief Justice said that the AG was at the preliminary stage and let him complete his arguments. Bhushan attempt to file a supplementary affidavit relating to N.Ram’s articles but the court said the former to argue on the submissions he had laid before the court and expressed that the bench was not going to look into any supplementary affidavits.
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