Criminal action may soon follow against two former union ministers Yashwant Sinha and Arun Shourie and Supreme Court lawyer Prashant Bhushan for alleged theft of top secret documents in the Rafale deal, the Centre told Supreme Court in an affidavit filed on Wednesday.
The three petitioners had relied on the classified document, claiming it was already a document in public domain. However, the Centre struck a severe blow to their claim by alleging that those responsible for "unauthorised photocopying" of the said documents and going public with it have "conspired in this leakage". Such persons, according to the Defence Ministry affidavit, are guilty of not just theft under the Indian Penal Code (IPC), but are liable for other offences as well that relate to jeopardising national security and adversely affecting friendly relations with foreign countries.
While no FIR has been filed, the Centre told the court that an inquiry is currently underway to find out where the leakage took place so that sanctity of decision making process in governance is protected for the future. However, since the documents have been leaked and are in public domain, the Centre has requested the court to remove these documents from the file of the review petitions and accompanying applications in the interest of national security. The Centre claimed "privilege" over the classified file notes under Section 123 of the Indian Evidence Act, which cannot be relied upon or disclosed without explicit permission of the Ministry of Defence (MoD).
The bold statement from the Centre came a day before a three-judge bench, headed by Chief Justice Ranjan Gogoi, is to hear the review petitions in an open court. On March 6, Attorney General KK Venugopal had claimed in court that the documents, produced by the petitioners, were "stolen" from the ministry and hunt was underway to nab the culprit.
The affidavit, by the Defence Secretary Sanjay Mitra, said, "The documents attached by the petitioners are sensitive to national security, which relates to war capacity of combat aircraft. Since the review petition has been widely circulated and is available in public domain, the same is available to the enemy/our adversaries....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/application are thereby committing theft by unauthorised photocopying of such documents."
Since the Rafale deal contained a secrecy clause, while the Centre kept secrecy, the petitioners (in the review petition) are guilty of leakage of sensitive information, which offends the agreement and harms the sovereignty, security and friendly relations with other countries. The Centre also placed the entire report of Comptroller and Auditor General before the court, alleging that the petitioners used the secret notes selectively, without disclosing complete facts with an intention to present "incomplete picture of internal secret deliberations on a matter relating to national security and defence".