A Rafale aircraft.

Supreme Court dismisses petitions seeking review of its judgment upholding purchase of 36 Rafale jets

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A Rafale aircraft.
A Rafale aircraft.

The three-judge Bench closes criminal contempt plea against Congress leader Rahul Gandhi, asks him to be ‘more careful in future’.

A three-judge Bench led by Chief Justice of India Ranjan Gogoi dismissed petitions seeking a review of its December 14, 2018 judgment upholding the purchase of 36 Rafale jets.

The Bench also closed a criminal contempt petition filed by BJP leader Meenakshi Lekhi against Congress MP Rahul Gandhi for wrongfully attributing the phrase ‘chowkidar chor hai’ to the Supreme Court. It said Mr. Gandhi’s statement was “unfortunate” and he had to be “more careful in the future”.

The court said it was not its business what “campaign line” he chose but he had to be wary about dragging the Supreme Court into it. What he said was “far from the truth” and probably said without even perusing the court’s Rafale judgment of December 2018. Though Mr. Gandhi had apologised, it came much later and in a convoluted manner, the court said.“Better wisdom” should prevail on him next time, Justice Sanjay Kishan Kaul, who co-authored the main judgment for the Bench along with the CJI, advised Mr. Gandhi.

In the main opinion, Justice Kaul said the issues of registering an FIR and a consequent probe by the CBI had all been already decided on merits by the Supreme Court in the 2018 judgment. There was no need to re-open these issues again.

The review petitioners, who include former Union Ministers Yashwant Sinha, Arun Shourie and lawyer Prashant Bhushan, had alleged that the government concealed crucial facts and misled the Supreme Court into giving a favourable verdict in December last year. They had sought the registration of an FIR and a CBI probe into their complaint against the Rafale purchase.

Factual mistakes

On the apparent factual mistakes in the 2018 judgment, the court said they pertained to two portions of the verdict. There was some “confusion” about “what has been and what was to be done”. The court allowed the application for correction of these paragraphs in the 2018 judgment.

Justice K.M. Joseph, the third judge on the Bench, agreed with the conclusions arrived in the main opinion of the Bench but suggested that if the CBI found any material in the former Union Ministers’ complaint deserving registration of an FIR, the agency should go ahead and do so.

Justice Kaul said “we cannot lose sight of the fact that the necessity of the jets (Rafale) is not questioned”. The court had already decided not to embark on a “fishing and roving enquiry” in the case. He said the submission made by the review petitioners for registration of an FIR and a CBI probe into the purchase, in this context, was not “fair”.

The government had objected to the review petitions, saying they were only an excuse for a fishing and roving inquiry into a sensitive defence buy.

“Once Supreme Court had come to the conclusion that on all the three aspects ie., the decision-making process, pricing and Indian Offset Partner, there is no reason for intervention on the sensitive issue of purchase of 36 Rafale fighter aircraft by the Indian government, there is no question of registration of FIR much less any investigation by the CBI,” the government had argued.

The government had maintained there was no element of criminality as the Comptroller and Auditor General (CAG) report had rubbished claims made that each Rafale jet was priced ₹1,000 crore more than the earlier aborted deal by the UPA government with Dassault for 126 Medium Multi-Role Combat Aircraft. The government said all pricing details, files, documents and records were made available to the team of the CAG which worked out its own aligned cost.

The government had said that an enquiry needed to be launched only if the complaint prima facie disclosed commission of cognisable offence..

The government denied misleading the court into believing that the CAG report on the Rafale deal. The petitioners had argued that the court was made to believe this by the government when the reality was there was no such CAG report at that point of time. The CAG report was filed in the Parliament only on February 15.

But the government dismissed the error as “misunderstanding of language”. It said the deal was based on the final decisions taken by competent authorities, that is, the Defence Minister, Defence Acquisition Council, and Cabinet Committee on Security.

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