A Rafale jet performing, during the AERO INDIA 2019 at IAF station Yelahanka, in Bengaluru.
The affidavit does not make a direct mention of any media outlets, or the publication of Rafale documents by them.
The "photocopying" of sensitive documents on the war capacity of the Rafale combat aircraft and their leakage is a "conspiracy" affecting national security, the government claimed in the Supreme Court on Wednesday.
The photocopying was done without the "permission, consent, acquiescence" of the government. It thus amounts to theft, an offence under the Indian Penal Code.
"Those who have conspired in this leakage are guilty of penal offences under the Indian Penal Code including theft by unauthorised photocopying and leakage of sensitive official documents affecting national security," an eight-page affidavit filed by the Ministry of Defence, represented by advocate R. Balasubramaniam, declared in the Supreme Court on Wednesday.
It rued how the sensitive documents, by being "widely circulated", have reached the hands of the enemies.
"National security is in jeopardy," the government declared.
The affidavit, signed by Defence Secretary Sanjay Mitra, informed an internal enquiry has been on since February 28, 2019.
"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 affidavit said.
The affidavit does not make a direct mention of any media outlets, or the publication of Rafale documents by them. Attorney-General K.K. Venugopal had submitted in court on March 6 that the government was contemplating "criminal action" under the Official Secrets Act of 1923. He had said the documents published by media on the purchase of 36 Rafale jets were “stolen” from the Ministry of Defence, probably by former employees. The court had asked the government to file an affidavit if it thought fit. The case, which is a review against the December 14 judgment of the apex court upholding the Rafale purchase, is a scheduled for hearing on March 14.
The affidavit, filed on Wednesday evening, said the petitioners, by annexing these "unauthorised" photocopies in their review petition, have managed to adversely affect the "sovereignty, security and friendly relations with the foreign countries".
The affidavit explained that the entire "conspiracy" ranged from making "unauthorised photocopies of the sensitive documents" to "annexing them in the review petition filed in the Supreme Court".
The government affidavit said the review petition has 14 sensitive pages annexed. These include a note of four pages marked 'secret', another one of two pages and third one of eight pages. All have been authenticated as true copies of the original documents by one of the review petitioners, advocate Prashant Bhushan.
The affidavit said the "leakage" of the documents has "offended" the terms of the Rafale purchase agreement.
"Secrecy was envisaged in the various agreements that the Central Government had entered into with the concerned foreign government and others concerning matters of national security. Even though the central government maintained 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," it said.
Additionally, the government accused the review petitioners of using the unauthorisedly accessed documents to present a "selective and incomplete picture of internal secret deliberations on a matter relating to national security and defence".
The documents, as presented by the petitioners, on the other hand, fail to show how the issues were addressed and resolved by the government.
An effort is on to mislead the court, the government claimed. The review petition should be dismissed outright. The effort of the petitioners, which also include former Union Ministers Yashwant Sinha and Arun Shourie, is against public interest.
The government has claimed privilege under Sections 123, 124 of the Indian Evidence Act, 1872. Section 123 bars anyone from giving evidence on the basis of "unpublished official records relating to any affairs of State". Explicit permission of the government officer concerned is required. Section 124 deals with a government officer's right to keep official communications secret.
The affidavit contended the petitioners produced the sensitive documents without permission from the government. These documents are also exempt from disclosure under the Right to Information Act, 2005, it argued.
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