The Supreme Court on Monday adjourned the hearing on the Rafale review petitions to 2 PM on Friday. The bench headed by Chief Justice Ranjan Gogoi also ordered that the connected matter of the contempt petition moved by BJP MP Meenakshi Lekhi against Congress Chief Rahul Gandhi for his remark. Gandhi had earlier said that the apex court had agreed that “Chowkidaar (PM Narendra Modi) chor hai" by dismissing the Centre's preliminary objection to the review petitioners placing reliance on certain "secret" Defence Ministry file-notings – allegedly obtained in an unauthorised manner.
As the bench, also comprising Justices S. K. Kaul and K. M. Joseph, convened at 2 PM, the Chief Justice inquired where the contempt petition was, considering that he had last Tuesday directed it to come up with the main review plea today. When he was informed by the counsel that there was a judicial order listing the contempt petition for May 10 and the review petitions for May 6, Chief Justice Gogoi remarked, "How can that be?" and asked for a copy of the order. "There is an order of analogous hearing of both matters. We dictated the order in court. In one case, it is 6th and in the other, 10th?...We had even inquired from the registry in the afternoon if any affidavit came. They said 'no'...we are a little perplexed, we can only say this for now...", observed the Chief Justice. Then on account of paucity of time (as many as 70 cases being listed before a bench presided by Justice Kaul in court 14, who had asked the lawyers to come then), the hearing in both the matters was deferred to May 10, despite petitioner-in-person Prashant Bhushan's request to argue till 3.
When the Chief Justice asked Attorney General [AG] K. K. Venugopal if the Centre has replied to the petitioners' application for additional documents (sought to be procured from the Defence Ministry), the AG replied in affirmative. Bhushan pointed out that there was, however, no reply to the perjury application with respect to the Centre's affidavit to the court last November allegedly stating that the Rafale deal had already been examined by the Comptroller and Auditor General (which had brought about the December 2018 judgment giving a clean chit to the BJP-led NDA government in the Rafale case, of which review is now sought). "No notice was issued on that," said the AG.
He had also raised the same ground last week to obtain four weeks' time to file the counter-affidavit in the main review proceedings. "Did we issue notice on the IA for additional documents? But you filed the reply...," noted Chief Justice Gogoi. Urging the advocates to make an endeavour to finish the matter in two hours on Friday, the Chief Justice observed that the hearing should not take more than two hours. Saying that he would himself require two hours, Bhushan sought permission to file his rejoinder by Wednesday. On April 10, the SC had decided to hear the review on merits, rejecting the preliminary objections raised by Centre regarding admissibility of documents produced by petitioners.
The review petition is filed by Advocate Prashant Bhushan and former Union Ministers Yashwant Sinha and Arun Shourie for reviewing the December 14 judgment which had declined to order probe into the alleged corruption in the deal to procure 36 aircraft from French company Dassault Aviation. They argue that the Court, instead of dealing with the original prayer for registration of FIR and investigation by CBI, reviewed the merits of the decision-making process in the deal, without having adequate facts before it. The Court had relied on the incomplete and erroneous information supplied by the Government through sealed cover envelopes, leading to "patent factual errors" in the judgment, submit the review petitioners. Later, the review petitioners produced in the Court the reports published by N Ram in The Hindu, which had claimed that there were several discrepancies in the deal process.
According to the petitioners, the Government's submission that the entire negotiations were handled by the Indian Negotiating Team is discredited by the revelation made by The Hindu that Prime Minister's Office(PMO) held "parallel negotiations" with the French side, much to the objections of some of the officials of the Ministry of Defence. That the PMO intervened in the negotiations stands admitted by the statements of the then Defence Minister Mohan Parikkar, the petitioners state. The finding of the Court that negotiations by Indian Negotiating Team (INT) arrived at better terms relating to "price, delivery and maintenance", is based on erroneous and incomplete facts, say the petitioners.
Referring to the dissent of three officials of the INT, which was reported in The Hindu, they submit that the interventions by the PMO led to the dilution of the several important clauses in the deal, like waiver of sovereign guarantee, non-insistence of payment in escrow account and incorporation of arbitration at Geneva as means of dispute resolution. Claiming that these were privileged documents which were accessed by media without authorisation, the Centre had objected to the Court relying on them. The SC, however, overruled the Centre's arguments based on Official Secrets Act and national security and held that the "right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech".
On Saturday, the Centre filed a counter-affidavit stating that "monitoring of the process by PMO cannot be regarded as interference or parallel negotiations".
Correction application and Perjury petition
The Government's note submitted on November 12 stated that the pricing details have been already shared with the CAG, and the CAG report "is examined by the PAC, and a redacted version of the report is placed in the Parliament". Based on this, the Court refrained from examining the pricing details of the deal, on the premise that they have been examined by the CAG and PAC. Since the CAG report was not existing at the time of judgment, the apex court's references to such a report in the judgment led to huge controversy. This led to the Government filing a "correction application" on the next day of judgment, saying that the references to the CAG report were based on misinterpretation of grammatical tenses. The petitioners have also filed a perjury application seeking criminal prosecution against officials who allegedly misled the Court.