During the hearing on petitions seeking review of the top court's earlier order which gave a clean chit to the government in the fighter deal, Attorney General KK Venugopoal said the documents cited by the petitioners were the stolen ones.
"State documents can't be published without explicit permission," he said.
Venugopal maintained that the security of State supersedes everything.
The apex court's bench, headed by Chief Justice Ranjan Gogoi, asked the government's top advocate, "What privilege do you claim? They have already produced them in court."
Upon hearing the Attorney General's submissions, the Chief Justice asked him to file an affidavit claiming the privilege.
The bench, which also included Justices Sanjay Kishan Kaul and KM Joseph, reserved its order on the privilege issue.
Petitioner Prashant Bhushan said the intentions of the government are "mala fide" as he argued that sharing of the said documents did not compromise the nation's safety and security.
"The intention was not to harm national security or defence services. Virtually these documents were published and are in public domain for a long time. Section 123 of the Indian Evidence Act refers to prevent those documents which are not in the public domain. But these documents were already in the public domain," he contended.
"The CAG report submitted by the government itself contains all details of as many as 10 defence deals. It is untenable on their part to now claim the privilege. Rafale is the only case where they redacted pricing details," Bhushan said.
He said the government had itself leaked some of the documents containing notings by the then Defence Minister (Manohar Parrikar).
"Violation of procedure may have been done but no issue of national safety and security been compromised at all as alleged by centre," the petitioner said.
Bhushan also referred to a 2014 order in the 2G case in which the court had asked him to disclose the source of information but the apex court had later recalled its order on disclosing source of the information.
"The Supreme Court had accepted entry registers of former CBI Director Ranjit Sinha in 2G and Coal Block cases without insisting on the petitioner to reveal how the registers were obtained," he argued.
Bhushan also submitted to the SC that there is no need for disclosing the source. He said that disclosing the source was not a necessity, as and when matters of public interest are there.Another petitioner Arun Shourie also argued that, "If AG said that the documents were stolen and photocopied, then it proves that the documents were genuine."
Earlier on Wednesday, the government had filed a fresh affidavit in the apex court in the Rafale case, saying that "unauthorisedly-accessed" documents related to "internal secret deliberations" had been presented in a "selective" manner to mislead the court and amounted to damaging national security.
The Ministry of Defence sought dismissal of both the review petition and the miscellaneous application in the matter while contending that "it has become imperative for the Union of India to seek removal of these documents from the record of the Review Petition and Miscellaneous application filed by the petitioners".
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