Arun Shourie on Everything Wrong With SC’s Rafale Verdict

Video Editor: Varun Sharma

On 14 December 2018, the Supreme Court dismissed all the petitions filed asking for investigations into the Rafale deal. Among these was the petition filed by former NDA Cabinet ministers Arun Shourie and Yashwant Sinha, along with senior advocate Prashant Bhushan.

The Quint spoke to Arun Shourie about why he believes the judges have got this verdict wrong, and what needs to be done. From incorrect facts (eg: that the CAG report on the Rafale deal was provided to the PAC) to the acceptance of government assertions without proof (and contrary to publicly available information), Shourie explains everything that doesn’t add up.

‘A Shocking and Disappointing Judgment’

In a press statement released after reviewing the verdict, Yashwant Sinha, Arun Shourie and Prashant Bhushan said that they are “shocked and disappointed by the court’s judgment.” They point out that since the judgment has not examined the facts in detail and dismissed the petition on the basis of a lack of jurisdiction, it can “by no means be considered to be the Supreme Court’s clean chit to this deal.”

The statement details a number of problems which they find with the judgment delivered by CJI Ranjan Gogoi and Justices SK Kaul and KM Joseph.

• The judgment proceeds on the basis that the petitioners were challenging the contract itself (rather than asking for an investigation), and relies on assertions by the government, whether in its affidavit or in the information submitted in a sealed cover.
• Some of the facts mentioned in the judgment are “not only not on record but are patently incorrect”.
• The primary example of this is the statement in paragraph 25 of the judgment that the CAG’s report has been examined by the Public Accounts Committee (PAC) and a redacted version submitted to Parliament and in the public domain. However, it is public knowledge that this has not in fact happened.

“Obviously this factually incorrect statement must be based on some communication (not on record and unknown to us) made by the government to the court. That the court has relied on such communication which is factually incorrect on 3 counts shows how dangerous it is for the court to rely on statements made in a sealed cover (not subject to scrutiny or verification) and give its judgment on that basis.”

Press statement by Yashwant Sinha, Arun Shourie and Prashant Bhushan

• There are also serious discrepancies between what the judgment says was asked from Indian Air Force officers who appeared before the court, and what they were actually asked in court.

“The court has also mentioned that Air Force officials were examined by the court on the acquisition process and pricing. This is also factually incorrect as the only question asked of the Air Force officials by the court and the only questions they answered was about whether the Rafale aircraft belonged to the 3rd,4th and 5th generation and when the last acquisition took place. They were neither questioned, nor did they say anything on the acquisition process or on pricing. At least this did not happen during court proceedings.”

Press statement by Yashwant Sinha, Arun Shourie and Prashant Bhushan

• The apex court has accepted the government’s arguments that the old deal between Dassault and HAL was stuck, despite a statement by the Dassault CEO in March 2015 saying the negotiations were 95% complete.
• The judges have accepted that procedure was followed even though the Cabinet Committee on Security approved the deal with retrospective effect. If this becomes the norm for subsequent judicial examination, “wrongdoers in control of governments would have a carte blanche”.

The court does not consider the facts disclosed by the petitioners about the increase in the benchmark price for the deal from 5.2 billion to 8.2 billion Euros, despite objections from members of the negotiating team.

Regarding the offset contracts controversy, the court notes that Dassault was already in negotiations with Reliance since 2012, but this “was a completely different company of Mukesh Ambani and had nothing to do with the new company of Anil Ambani incorporated at the time of the 2015 deal.”

Finally, the court has overlooked the fact that the petitioners were only seeking an independent investigation by the CBI or an SIT, which was why they had first approached the CBI with their complaint.

“The law on this has been laid down in a Constitution bench of the Supreme Court in Lalita Kumari’s case which says that if allegations made in a complaint are of a criminal offence an FIR must be registered and investigation must be made. The allegations in the complaint by us were of huge commissions being given to Ambani’s company through the guise of offset contracts in a deal which was contrived to ensure that such commission would be paid.”

Press statement by Yashwant Sinha, Arun Shourie and Prashant Bhushan

They end by saying that the issue will continue to be relevant to the public until there is full disclosure of all the facts and a comprehensive, independent investigation into the deal. In his conversation with The Quint, Shourie appealed to the media to keep working on the issue, and examine the facts and the judgment.

“Facts have a habit of coming out through interstices in the stones,” he concluded.