Rafale deal: Supreme Court can't use leaked' papers, says Centre

New Delhi: On the eve of a crucial hearing on the Rafale jet deal, the Centre on Wednesday urged the Supreme Court not to rely on the photocopy of the documents attached in the review petitions as these are “sensitive to national security” and those who conspired in photocopying the secret papers have committed theft and put the security in jeopardy by leaking them.

Defence secretary Sanjay Mitra, in a brief affidavit filed on Wednesday, said “Those who have conspired in this leakage are guilty of penal offences including theft by unauthorised photocopying and leakage of sensitive official documents affecting national security.”

The unauthorised photocopying of such documents has adversely affected the sovereignty, security and friendly relations with foreign countries, the Centre said, urging the Supreme Court that these documents be removed and review petitions dismissed.

“The documents presented by the petitioners are failing to bring out how the issues were addressed and resolved and necessary approvals of the competent authorities taken. The selective and incomplete presentation of the facts and records by the petitioners are intended to mislead this court into deriving wrong conclusions, which is very damaging to national security and public interest,” said the affidavit.

The Centre said that since the review petitions against the judgment dated December 14, 2018 (giving clean chit to the Rafael deal) had been widely circulated and are available in public domain, the same are available to the enemy/our adversaries and “this puts national security in jeopardy”.

The ministry said an internal inquiry, launched on February 28, is in progress over the leakage of sensitive documents and it is of “utmost concern” to find out where the leakage took place.

The affidavit filed by the ministry said documents attached by the petitioners —- former Union ministers Yashwant Sinha and Arun Shourie — as also activist advocate Prashant Bhushan relate to war capacity of combat aircraft.

The ministry said secrecy was envisaged in various agreements that the Centre had entered into with France and others concerning matters of national security. Last week the attorney general K.K. Venugopal asserted that the documents attached by advocate Prashant Bhushan which were published by a newspaper were stolen materials and should not be taken on record.

Later, the A-G clarified that documents were not stolen but only photocopied and leaked. The Centre’s present affidavit maintained that the documents were photocopied and removed.

The Centre said, “It is of utmost concern to the Central government to find out where the leakage took place so that in future the sanctity of decision-making process in governance is maintained.  The petitioners are using unauthorisedly accessed documents with the intention to present a selective and incomplete picture of internal secret deliberations on a matter relating to national security and defence.”

In this context, the performance audit report of the Comptroller and Auditor General of India on Capital Acquisition in Indian Air Force is already presented to the Parliament, the ministry said.

These documents belong to a class, which the government is entitled to claim privilege under Section 123, 124 of the Indian Evidence Act, 1872, (which says no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of the state).

Therefore, the petitioners have no authority whatsoever to produce the same before this court without the explicit permission of the government, the affidavit said.