Rafale case: Petitioners guilty of leaking secrets, Modi government tells Supreme Court 

The Centre on Wednesday told the Supreme Court that former Finance Minister Yashwant Sinha, journalist-turned politician Arun Shourie and activist-lawyer Prashant Bhushan are guilty of leakage of sensitive information having a bearing on national security and combat capacity of Rafale fighter jets.

Citing "secrecy" in the matter, the Centre contended that the three petitioners - Sinha, Shourie and Bhushan - are "guilty of leakage of sensitive information, which offends the terms of the agreements" on the fighter jet.

In an affidavit, the government said the leaked information was now available to the "enemy/our adversaries", adding those who have conspired in this leakage were guilty of penal offences punishable under Indian Penal Code.

The offences include theft by unauthorized photocopying and leakage of sensitive official documents affecting national security, which relate to war capacity of combat aircraft, said the affidavit filed by the Defence Secretary Sanjay Mitra.

The Centre's affidavit comes on the eve of a hearing on the plea for the review of the apex court's December 14 judgement giving a clean chit to the Centre by holding that the decision-making process on the Rafale jets was not in doubt.

The matter is listed for hearing on March 14.

An internal inquiry, started on February 28, is aimed at finding out where the leakage took place. "... It is of utmost concern so that in future the sanctity of decision-making process in governance is maintained", says the affidavit filed by the Defence Secretary.

The Centre has contended that the four-page note annexed with the petition seeking a review of the December 14 judgement is a "secret" document.

Similarly in the miscellaneous application by Sinha and others seeking perjury action against the officers allegedly for misleading the court consists of two notes of two pages and 8 pages which too are privileged.

All the three documents - one annexed with the review petition and two with the miscellaneous applications -- have been authenticated by Bhushan.

Contending that the documents attached to the review petition and miscellaneous application were "sensitive to national security which relates to the capacity of combat aircraft", the Centre asserted that this has put "the national security in jeopardy."

Those who have "conspired in making the photocopies of these sensitive documents" without the "consent, permission or acquiescence of the Central government" have committed theft by unauthorised photocopying of such documents, says the affidavit.

The Centre further said that "secrecy was envisaged in the various agreements that the Central government had entered into with the foreign government and others on matters of national security."

The leakage of documents to relating Rafale has "adversely affected the sovereignty, security and friendly relations with foreign countries."

The petitioners "unauthorisedly accessed the documents with the intention to present a "selective and incomplete picture of internal secret deliberations."

"The documents presented by the petitioners fail to bring out how the issues were addressed and resolved and if necessary approval of competent authorities was taken", says the affidavit.

The selective and incomplete presentation of facts and records by the petitioners, the Centre has contended, is "intended to mislead the court into driving wrong conclusions, which are very damaging to the national security and public interest."

The government cited recent CAG report to back its contention.

The Centre has contended that the documents which were unauthorisedly photocopied belonged to a class for which it was "entitled to claim privilege under Section 123 and 124 of the Indian Evidence Act, 1872."

Asserting that the petitioners had "no authority whatsoever to produce the same before the court without explicit permission" of the government, the government affidavit says that these documents are exempt from disclosure under Section 8(1)(a) of the Right to Information Act.