Rafale Verdict: CAG Report Row Caused by ‘Misinterpreted’ Grammar?

The government claims that SC ‘misinterpreted’ its sealed cover note on the CAG report, leading to the controversy.

The Government claimed that 

(Photo: Shruti Mathur/The Quint)

Did the Centre mislead the Supreme Court of India in the Rafale case over the status of the CAG report on the deal?

This was the controversy that erupted on Friday, 14 December, after Public Accounts Committee (PAC) Chairman Mallikarjun Kharge revealed that the CAG had not provided his report to the PAC – contrary to what the Supreme Court had said in its judgment dismissing all the petitions against the Rafale deal.

In paragraph 25 of the decision by Chief Justice of India Ranjan Gogoi and Justices SK Kaul and KM Joseph, the apex court notes that:

“The pricing details have, however, been shared with Comptroller and Auditor General..., and the report of the CAG <b><i>has been</i></b> examined by the Public Accounts Committee... Only a redacted portion of the report <b><i>was</i></b> placed before the Parliament and <b><i>is</i></b> in public domain.”

(emphasis supplied)

At a press conference on Friday, Kharge, seated alongside Congress President Rahul Gandhi, said the PAC had not received a report from the CAG, and no report had been placed before Parliament. Two other members of the PAC, Congress MP Rajeev Gowda and Biju Janata Dal MP Bhartruhari Mahtab, also confirmed to The Wire that the report had not been provided to the PAC as far as they were aware.

Journalists pointed out that the report (redacted or otherwise) was not in the public domain, and in fact, there were multiple news reports that the CAG’s report was being delayed.

On Saturday, Kharge accused the government of lying to the Supreme Court, saying:

“Government lied in Supreme Court that the CAG report was presented in the house and in PAC and PAC has probed it. Government said in the court that it is in public domain. Where is it?”

He also said he would request members of the PAC to summon the CAG and Attorney-General KK Venugopal to explain when the report had been submitted. He found a surprising ally in BJP MP Subramaniam Swamy, who said we had to take him at his word, and suggested Kharge file an affidavit in the court on this.

The Government’s Clarification

As the issue threatened to become a larger scandal, the Centre filed an application in the Supreme Court asking for a correction of the lines in the judgment about the CAG report.

According to the government, there had been a “misinterpretation of a couple of sentences in a note handed over to this Hon’ble Court in a sealed cover.”

On 12 November, the Centre had handed over a note on the pricing of the Rafale deal in a sealed cover to the judges, at the court’s request. The government claims that the second bullet point in this note appears to be the source of the confusion. Here’s what this reportedly said:

“The Government has already shared the pricing details with the CAG. The report of the CAG <b><i>is</i></b> examined by the PAC. Only a redacted version of the report<b><i> is</i></b> placed before the Parliament and in public domain.”

(emphasis supplied)

The government application goes on to say that this shows the bullet point was meant to be a description of the normal procedure which is followed when a CAG report is ready, hence the usage of the word “is” in both places highlighted above. In contrast, the Supreme Court’s judgment uses the past tense in both those places – “has been” and “was” – which indicates the report had already been provided to the PAC and placed before Parliament.

It therefore requested the court to correct paragraph 25 of the judgment to use the word “is” instead of “has been” and “was”.

So Whose Fault Was it Really?

Despite their notes on grammatical interpretation to the court, the Centre’s own wording was definitely not the clearest. The bullet point should have read:

• the report of the CAG will be examined by the PAC;
• a redacted portion of the report will be placed before Parliament and in public domain.

Even so, there was no way the court should have made the leap from the government’s bad wording, to the interpretation it arrived at: That the report had already been submitted to the PAC and was in the public domain. To misread those lines in such a blatantly wrong way would be quite embarrassing for judges whose job is literally all about proper interpretation of language.

If they did actually make this mistake, the judgment will need to be corrected, which the judges have the power to do after receiving this application. If so, this would allow the government to deny claims that it misled the court, though you could still perhaps argue that the government used the word “is” precisely because it was ambiguous, and so hoped to mislead the court (though this would be a bit of a stretch).

Of course, this is dependent on the claims made by the government in its application to be true. We cannot however be sure of this, since the note that allegedly led to this whole brouhaha was submitted in a sealed cover. If it weren’t for the sealed cover shenanigans, even if the Centre had tried to mislead the court, the petitioners would have been able to contradict them and show how the CAG report had not actually been filed.

Since this was not possible, it was actually incumbent on the judges to make sure that they did their own diligence and use the reams of publicly available information to ensure they got things right. Whatever the Centre’s note actually said, if the judges thought the Centre was claiming the report was already out, they should have asked for proof of this, rather than taking a poorly-worded statement to be the gospel truth.

The Dangers of Sealed Covers

The controversy is therefore a perfect example of the dangers of this kind of ‘sealed cover jurisprudence’ that the apex court has recently adopted in the Rafale, Alok Verma and NRC cases. The court will need to think long and hard about allowing this to continue, as it could otherwise mean having to continually revisit old decisions, and, more problematically, make the judicial process more arbitrary.

As constitutional scholar Gautam Bhatia puts it,

“A judicial regime in which the first recourse is to the “sealed cover” – thus setting up a secret dialogue between the Court and the State, to the exclusion of the citizen – has no place in a democratic set-up.”

For a definitive answer on whether the government misled the court, or the judges made a grammatical blunder, we will need to wait and see what the judges have to say about this application filed by the government. With the CJI travelling abroad till 19 December, and the court on its winter break, we will only get an answer on or after 2 January 2019.

Till then, the controversy, and the doubts it has raised about our government and our judiciary, will continue to rumble on. This will no doubt have an adverse effect on public confidence in our institutions – which is ironic, since ensuring that confidence is the ostensible justification for sealed cover jurisprudence in the first place.