Rafale Review Plea Claims “Patent Factual & Legal Errors” by SC

This lack of scrutiny meant the judgment relied on “gross factual errors”, says the petition.

Arun Shourie, Yashwant Sinha and Prashant Bhushan, who had filed one of the petitions heard by the Supreme Court before passing its Rafale verdict, have now filed a review petition against the judgment of 14 December.

(Photo: The Quint)

Arun Shourie, Yashwant Sinha and Prashant Bhushan, who had filed one of the petitions heard by the Supreme Court before passing its Rafale verdict, have now filed a review petition against the judgment of 14 December.

According to the petition, a review is needed since the judgment is “based on errors apparent on the face of the record and subsequent information has come to light, non consideration of which will cause grave miscarriage of justice.” They have also asked that the review be conducted in open court, giving them and the government a chance to present arguments.

On 14 December, the Supreme Court had held that there was no need to interfere with the Rafale deal since the relevant procedures had been broadly followed, and that investigating its pricing or the offset contract process would be beyond the Supreme Court’s power of judicial review. As a result, it had dismissed all the petitions, including the one filed by Shourie, Sinha and Bhushan.

Here are the key arguments from their review petition.

It is apparent from the judgment that it only addresses the prayer by the other petitioners (ML Sharma, Vineet Dhanda, etc) who had asked for a review of the contract by the court and its cancellation. The judgment did not, however, deal with Shourie, Sinha and Bhushan’s request for registration of an FIR and investigation by the CBI. This was a distinct request and had nothing to do with the court’s powers of judicial review.

The Supreme Court relied on unsigned notes submitted by the government in a sealed cover when holding that pricing information was confidential and privileged. However, in a 1981 judgment, the apex court had held that in such situations, the court has the discretion to look at the primary documents to see whether the claim of privilege is justified, which the court didn’t do.

This lack of scrutiny meant the judgment relied on “gross factual errors”. These included the non-existent CAG report that the judgment said had already been submitted by the CAG to the Public Accounts Committee, with a redacted version in the public domain. Other patent falsehoods included the conflation of Mukesh Ambani and Anil Ambani’s Reliance companies, and that Air Force officers had answered the court’s queries on acquisition and pricing (the officers were only asked about necessity for Rafale and other aircraft during the hearings).

The court relied on averments by the government which were contradicted by facts available in the public domain. These included the government’s argument that the RFP for the original 126 aircraft deal had been withdrawn in March 2015 – which run contrary to statements made by Dassault CEO Eric Trappier on 25 March 2015 and Foreign Secretary S Jaishankar on 8 April 2015.

The judgment failed to consider several material facts that raised pertinent issues, such as the fact that there was no Acceptance of Necessity for the new 36 aircraft deal (the old AON from the IAF suggested a need for 126 aircraft). The judgment also skirted over the lack of a sovereign guarantee from France despite the objections to this from the Law Ministry that the petitioners brought on record and the increase in benchmark price from 5.2 billion euros to 8.2 billion euros.

The judgment found no reason to interfere in the offset process and accepted the government’s argument that they had nothing to do with selection of offset partners. However, though the government had retrospectively amended the DPP to remove the need for government approval of offset partners, at the time the deal was signed in September 2016, the DPP still required details of partners to be submitted to the government, and approval of these by the Defence Minister.

The review petition also points out that information has also come out subsequent to the judgment on 14 December which indicates the government failed to disclose material facts about the negotiation of the Rafale deal to the Supreme Court or misled the court. Examples included information in The Caravan about how the Cabinet Committee on Security changed the benchmark price and the involvement of NSA Ajit Doval, information about the objections of the Indian Negotiating Team, and the comments by Sudhanshu Mohanty, former Financial Adviser (Defence Services) on problems with the deal.

You can read the whole petition here: