The Supreme Court on Wednesday, 6 March, began hearing the petitions seeking a review of its judgment on the government’s purchase of 36 Rafale jets from Dassault Aviation.
Besides two review petitions – one filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan and another by AAP MP Sanjay Singh – the top court is also looking into applications including the one filed by Sinha, Shourie and Bhushan seeking perjury prosecution of government officials for allegedly misleading the court on the issue of pricing and procurement process.
Bhushan, Sinha and Shourie had moved the Supreme Court on Monday, 18 February, seeking initiation of perjury proceedings against central government officials for allegedly giving "false or misleading" information in a sealed cover in the high-profile Rafale case.
A day after the 14 December verdict, the Centre had moved the apex court seeking correction in the judgment where a reference was made about the Comptroller and Auditor General (CAG) report and Parliament's Public Accounts Committee (PAC), saying "misinterpretation" of its note has "resulted in a controversy in the public domain".
The SC on Thursday, 21 February, had said that it would consider listing of the plea seeking review of its verdict in the Rafale case.
On 14 December last year, the apex court had dismissed a clutch of PILs, including the one filed by Sinha, Shourie, and Bhushan, saying there was "no occasion to doubt" the decision-making process of the Centre in the procurement of 36 Rafale jets from France.
A bench headed by Chief Justice Ranjan Gogoi said four applications or petitions have been filed in the Rafale matter and one of them is still lying with the registry on account of defect.
"The combination (of the judges) of bench will have to be changed. It is very difficult. We will do something for it," the bench, also comprising Justices LN Rao and Sanjiv Khanna, said when Bhushan sought urgent listing of the petitions in the Rafale case.
The Supreme Court on 26 February had agreed to hear in open court the petitions seeking review of its December 2018 verdict that dismissed pleas challenging the deal between India and France for the procurement of 36 Rafale fighter jets.
A bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph, in its chamber hearing, allowed the prayer of Sinha and Shourie and Bhushan that the review pleas be heard in open court.
"The prayer for open court hearing is allowed", said the bench which also considered the review petition filed by AAP MP Sanjay Singh through lawyer Dheeraj Singh.
What Does Shourie, Sinha and Bhushan’s Review Petition Say?
The petition filed by Shourie, Sinha and Bhushan argues that the Supreme Court decision contains “patent factual and legal errors” and needs to be reviewed. The main arguments are as follows:
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.
Relying on information in a “sealed cover” meant the judgment relied on “gross factual errors.” These included the non-existent CAG report that, according to the judgment, 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 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.
What Will the Supreme Court Need to Decide?
After the Supreme Court’s judgment in December, a lot more information has come to light on the Rafale deal, including the articles by N Ram in The Hindu on the PMO’s “parallel negotiations” with French counterparts that were objected to by the Defence Ministry, and the dropping of anti-corruption clauses in the contract at the last minute. Shourie, Sinha and Bhushan have filed applications in the court, submitting this information to the judges already.
Some of these revelations directly contradict what the government said in its note on procedure to SC, which the court had relied on in the judgment. If the court finds the information to be reliable, then it may need to reverse its finding that the procedures for procurement were “broadly followed.”
The CAG report on Rafale deal could also be relevant to this, including a paragraph where it is noted that the 36 aircraft deal was not based on anything in the Defence Procurement Procedure (DPP).
The judges will also need to consider the issue of what their judgment said about the CAG report and how this was inaccurate. In December, the judges wrote that according to the Centre, the CAG report had already been submitted to the Public Accounts Committee and a redacted version was available in the public domain, which was untrue. The government filed an application for a correction on this point, claiming this was a grammatical misinterpretation of what they’d actually said. The apex court has not dealt with this application till now.
It is rare to see review petitions leading to any change in the Supreme Court’s judgments, but the obvious errors and subsequent information in this case may make it a different case. However, since the court had accepted sealed cover notes from the Centre and declined to consider news reports contradicting these in its original judgment, it is difficult to see this happening.
(With inputs from PTI.)
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