SC reserves order on Centre claiming privilege over 'leaked' Rafale documents

A Rafale fighter aircraft rehearses for fly-past ahead of 12th edition of AERO India 2019 at Yelahanka airbase in Bengaluru, Feb 15, 2019. (PTI Photo)

The Supreme Court (SC) on Thursday reserved its order on whether it would examine the documents submitted by petitioners - activist-lawyer Prashant Bhushan, former Finance Minister Yashwant Sinha and former BJP leader Arun Shourie - in the review pleas filed in the multi-million dollar Rafale fighter jet deal. 

During the hearing, Attorney General K K Venugopal, who appeared for the Centre, argued before the SC bench led by Chief Justice Ranjan Gogoi that the documents submitted by petitioners are privileged and cannot be produced in court without the permission of the government. The petitioners rejected the government's claim, stressing that the government was trying to brush aside everything by raking up the matter of national security. The bench also includes Justices Sanjay Kishan Kaul and KM Joseph. 

Attorney General Venugopal tried to put across his point by referring to section 123 of the Evidence Act and provisions of RTI Act. But Justice Joseph responded to A-G saying that RTI Act applies for even sensitive information in cases of corruption and human rights violation. The A-G also urged the apex court to remove the leaked-out pages from the review petitions because the government has privilege over these documents.

A-G Venugopal maintained that the security of State supersedes everything. The SC bench then asked the A-G, "What privilege do you claim? They have already produced them in court.” The CJI then directed the Attorney General to file an affidavit claiming the privilege.

On Wednesday, an affidavit was filed by the Centre in the SC in which it was claimed that the petitioners, who were urging the top court to review its judgement passed in December last year saying that nothing suspicious was done by the government in the Rafale deal, are guilty of leakage of sensitive information. The affidavit also added that the leakage of these documents can affect the national security and combat capacity of the fighter jets.

"Those who've conspired in this leakage are guilty of penal offences including theft by unauthorized photocopying&leakage of sensitive official documents affecting National Security. These matters are now subject of an internal enquiry which commenced on Feb 28," the Ministry of Defence said in its affidavit.