A day before crucial hearing in the case, the Centre on Wednesday told the Supreme Court that documents filed by the petitioners seeking review of its Rafale deal verdict are 'sensitive to national security' and those who conspired in photocopying the papers have committed theft and put the security in jeopardy by leaking them.
The Ministry of Defence said an internal enquiry commenced on February 28 and 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 and have been widely circulated, available to the country's enemy and adversaries.
"This puts the national security in jeopardy. Without consent, permission or acquiescence of the Central Government, those who have conspired in making the photocopy of these sensitive documents and annexing it to the review petition/ miscellaneous application and thereby committing theft by unauthorised photocopying of such documents relied in this regard... have adversely affected the Sovereignty, Security and Friendly Relations with the foreign countries," said the affidavit, filed by Defence Secretary Sanjay Mitra.
The affidavit assumes significance as Attorney General K K Venugopal on the March 6 hearing before a bench headed by Chief Justice Ranjan Gogoi had alleged that the review petition was based on the documents which were stolen from the ministry.
Two days later, Venugopal claimed the Rafale documents were not stolen from the Defence Ministry and he had meant in his submission before the top court that the petitioners in their application had used 'photocopies of the original' papers, deemed secret by the government.
The ministry said secrecy was envisaged in various agreements that the Centre had entered into with France and others concerning matters of national security.
It said even though the Centre maintains secrecy, Sinha, Shourie and Bhushan are relying on documents annexed and 'are guilty of leakage of sensitive information, which offends the terms of the agreements'.
The Centre said those who have conspired in this leakage are guilty of offences under the Indian Penal Code including theft by unauthorised photocopying and leakage of sensitive official documents affecting national security.
"These matters are now a subject of an internal enquiry which has commenced on February 28 and it is currently in progress.
"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 decision making process in governance is maintained," said the affidavit, which will come up for perusal before the apex court on Thursday.
The review pleas were filed against the December 14 verdict dismissing all the pleas against the deal procured by India from France.
The Centre asserted that Sinha, Shourie and Bhushan 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 and have been used by them with an intention to mislead the court.
"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," it said.
It said that documents relied in petition belong to a class 'in which the Government of India is entitled to claim privilege under Section 123, 124 of the Indian Evidence Act'.
Section 123 states that no one should be permitted to give any evidence derived from unpublished official records relating to any affairs of the State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Section 124 states no public officer should be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
The affidavit said the documents unauthorisedly produced by petitioners are exempt from disclosure under Right to Information Act and as such petitioners have no authority whatsoever to produce it 'before the court without the explicit permission of the Government of India, Ministry of Defence'.
The Centre said that since they have illegally and unauthorisedly produced the privileged documents, it has become imperative to seek the removal of these papers from the court record.
The government on March 6 hearing had also threatened The Hindu newspaper with the Official Secrets Act for publishing articles based on them and also contempt of court.
Violation of the Act, entails maximum punishment of up to 14 years, while the contempt law attracts six months jail as also a fine of Rs 2,000.
The Hindu publishing group Chairman N Ram on March 6 had said nobody would get any information from the newspaper on the confidential sources who provided the documents.
Ram had said those documents were published in public interest as the details of the Rafale deal were withheld or covered up.