A day before the crucial hearing in the Rafale matter, the Central Government in an affidavit filed in the Supreme Court said the unauthorised photocopying of “sensitive documents” relating to the purchase of the aircraft and their inclusion as annexures in the review petition amounted to “theft”.
The petition, seeking a review of an earlier Supreme Court judgment dated December 14, 2018 on the issue of how the Rafale aircraft deal was awarded, has been filed by Prashant Bhushan, Yashwant Sinha and Arun Shourie. The December 2018 had dismissed a batch of petitions seeking a court monitored probe into the Rafale deal.
National security jeopardised
The Central Government affidavit in this instance claimed that national security had been jeopardised since “the review petition has been widely circulated and is available in public domain, the same is available to the enemy/our adversaries.
Review petitions have been filed against the Supreme Court’s judgment dated December 14, 2018 dismissing a batch of petitions seeking court monitored probe into the Rafale deal.
It said the disclosure of the documents relating to the negotiations had adversely affected the sovereignty, security and friendly relations with foreign countries. “Those who have conspired in making the photocopy of these sensitive documents and annexing it to the Review Petition/Misc. Application and thereby committing theft by unauthorised photocopying of such documents”, says Defence Secretary Sanjay Mitra in his affidavit before the Court.
Confidentiality terms breached
The Central Government affidavit also states that the disclosure of those documents had adversely affected the sovereignty, security and friendly relations with the foreign countries as the leakage had offended the confidentiality terms of the agreement. “Even though the Central Government maintains secrecy, the petitioners and the deponent of the affidavit of the review petition are guilty of leakage of sensitive information, which offends the terms of the agreements,” the affidavit states. It carries on to hold that those who had conspired in this leakage were “guilty of penal offences under the Indian Penal Code, including theft by unauthorised photocopying and leakage of sensitive official documents affecting National Security……”
The disclosure of the documents relating to the negotiations had adversely affected the sovereignty, security and friendly relations with foreign countries.
The Centre also informed the Supreme Court that an internal enquiry had been constituted on February 28, 2019 into the leaked documents. “In particular, it is of utmost concern to the Central Government to find out where the leakage took place so that in future the sanctity of the decision making process in governance is maintained,” the affidavit states.
Privilege and RTI exemption
In addition, the Centre has claimed that as unpublished official records relating to affairs of the state, these documents belonged to a class under which the Government of India was entitled to claim privilege under certain sections of the Indian Evidence Act, 1892.
Those who had conspired in this leakage were “guilty of penal offences under the Indian Penal Code, including theft by unauthorised photocopying and leakage of sensitive official documents affecting National Security”.
Further, without the explicit permission of the Government of India, the petitioners had no authority whatsoever to produce the same before this Court. They were also exempt from disclosure under Section 8 (1) (a) of the Right to Information Act, 2005, the affidavit claims.
A three-judge bench of Supreme Court comprising CJI Ranjan Gogoi, Justice S K Kaul and K M Joseph is scheduled to hear review petitions in Rafale matter tomorrow, March 14, 2019 at 3:00 PM.
Read the Affidavit.