By
Indira Jaising
From the eye-popping report published
in The Hindu, it is now clear that the PMO was, in fact, in “parallel
negotiations” with the French government over the Rafale deal, and that Defence
Ministry officials had raised strong objections to this, saying that it had
“weakened the position of the MoD and the Indian Negotiating Team seriously”.
This note from the defence secretary was dated November 24, 2015.
Subsequently, the Government, via a
news agency, has put out the fuller version of the note which indicates that
the then Defence Minister, Manohar Parrikar, said this was an “overreaction” by
MoD, and “it appears that PMO and French president’s office are monitoring the
progress of the issues, which was an outcome of the summit meeting…” This
reaction of the Defence Minister came after more than a month of the November
24, 2015 note, and was written on January 11, 2016, after 43 days. It is
pertinent to observe here that the then Defence Minister Parrikar had neither
falsified, nor contested the content of the defence ministry official’s note,
but instead had suggested that the matter should be resolved “in consultation
with the Pr Sec to P.M.” [sic]
However, the words of the defence
ministry officials now seem prophetic in hindsight and perhaps explain why the
deal, announced by Prime Minister Narendra Modi himself in France on April 10,
2015, was eventually struck at the escalated price of 7.87 billion euro for 36
Rafale jets and that too without a sovereign guarantee, which was being
insisted upon by the defence ministry officials as well as the Indian
Negotiating Team.
But apart from the obvious
implications of off-the-record “parallel negotiations” by the PMO, what does
this mean for the Supreme Court judgment delivered on December 14, 2018,
rejecting several petitions filed for a mandamus directing the CBI to lodge an
FIR in relation to the deal?
We already have an appellation by the
Government of India, by the mysterious A K Sharma alone (there is no affidavit
by the person who created the note in sealed cover, which the Court is stated
to have “misunderstood”) calling for a “correction” of the Supreme Court
judgment on the ground that there was no then existing report of the CAG on the
Rafale deal and that the report will be sent to the CAG in future. This by
itself would vitiate the judgment and render it liable to be set aside.
For reasons unknown, the application
is not being taken up for hearing. We, therefore, do not know whether it was
the Union Government that “misled” the Court, or whether the Court
“misunderstood” the contents of the sealed cover.
Either way, considering that the
judgment is based on a mistake of fact of a gross nature, on the question
whether the Court ought to look into the pricing, the judgment is no judgment
in the eye of law.
While
the Court is entitled take a point of view on law which may be debatable, it is
not at liberty to play fast and loose with the facts. For a Court of law, facts
are sacred and not negotiable.
I
have said elsewhere that a judgment based on facts which are false, is no judgment
in the eye of law. The remedy is to recall the judgment and go for a fresh
hearing, possibly by a different bench. The remedy is not a review of the
judgment, much less an application for “correction” of the judgment, as is
sought to be done by the Union Government.
This
is perhaps the first time in Indian legal history that the Government has told
the Court how to rewrite its own judgment, and which para to substitute for
which one. Now comes the news, with clear evidence in the form of the defence
ministry note, that the procedure for negotiating the deal was not followed.
One
of the fist issues framed by the Court was the question whether procedures
prescribed for negotiating the deal were followed. With regard to this, the
Supreme Court in its December 14, 2018 order said:
“We
have studied the material carefully. We
have also had the benefit of interacting with senior Air Force Officers who
answered Court queries in respect of different aspects, including that of the
acquisition process and pricing. We are satisfied that there is no occasion to
really doubt the process, and even if minor deviations have occurred, that
would not result in either setting aside the contract or requiring a detailed
scrutiny by the Court. We have been informed that joint exercises have taken
place, and that there is a financial advantage to our nation. It cannot be
lost sight of, that
these are contracts of defence procurement which should be
subject to a different degree and depth
of judicial review. Broadly, the processes
have been followed. The need for
the aircrafts is not in doubt. The quality of the aircraft is not in question………”.
This
clearly indicates that if procedures were followed, there would be no case for
entertaining the petition any further. The converse is equally true — that if
procedures were not followed, the court would entertain the petition and
consider directing the CBI to register an FIR. Failure to follow procedure
leads to a presumption that the decision-making process was vitiated by
extraneous considerations.
Now
we have evidence that the procedure was not followed. This information was withheld from the Court.
This could only have been a conscious decision, by the authors of the sealed
cover, to conceal from the court the fact that the MoD had on record protested
about “parallel negotiations” by the PMO.
There
is now no doubt that this is a case for recall of the judgment and go for a de
novo hearing. While the Supreme Court has issued notice for contempt to advocate
Prashant Bhushan for commenting on pending court proceedings in a tweet, today
we are all pointing out that the Government concealed facts from the Court in
the Rafale case, and that too in pending proceedings. This time, it is the
Indian National Congress president Rahul Gandhi who is openly saying that it is
the Union Government that lied to the court.
So,
are we all guilty of contempt, or is there a public interest in freedom of
speech in matters of national importance? We have a right to insist that court
proceedings are not manipulated by the Government by presenting half-truths in
sealed cover to the court. (IPA Service)
The writer is a Senior Advocate, Supreme
Court
Courtesy: The Leaflet
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