Amidst the countrywide euphoria over the successful air strikes on terror camps in Pakistan, the Supreme Court has opened a Pandora’s Box by agreeing to hold an open hearing on the review petitions calling for the recall of the verdict given by the apex court on December 14 last year.
The decision of the SC bench headed by the Chief Justice Ranjan Gogoi has extraordinary significance as it allows consideration by the bench of the points made by the petitioners that the December 14 judgment was based on the wrong and untruthful facts submitted by the Government in the sealed envelope to the Court.
Further, the bench took an uncommon decision to hold the hearings in an open court instead of its chamber, which is generally done in such review cases. This gives credence to the fact that the highest Court of the country has taken up this Rafale deal controversy very seriously now as the Court’s image and especially the image of the Chief Justice has got a beating as a result of the dismissal of the petitions earlier and giving clean chit to the NDA government of the Prime Minister Narendra Modi.
Now, the petitioners, especially the Trio – Two former ministers Yashwant Sinha and Arun Shourie and the lawyer Prashant Bhushan will be getting full opportunity in the open court to mention of the erroneous facts given by the Government in their note submitted through the sealed envelope as also the reports quoting the official documents which came out in media after December 14 judgment pointing out the active involvement of the Prime Minister’s Office in the decision making process on the Rafale deal overlooking the views of the defence secretary.
The date of the hearing has not yet been fixed but indications are that it will be held soon and that will start a process when the PM’s actions also in respect of precipitating the Rafale deal, will come to limelight.The most important aspect of the petition submitted by the trio in revised form, mentions that the December 14 judgment relied on non-existent CAG report to give clean chit to the deal.
The petitioners want the recall of the judgment since the judgment based on a hypothetical CAG report is not merely a clerical or arithmetical slip but a substantial error. Since the apex Court has agreed to hear the petition, it will be a tough task for the Government people including the attorney general to defend the official position. The Court will decide on the basis of open session hearings whether the December 14 judgment will be reviewed.
At this present juncture when no one is questioning the Prime Minister and his policies in the wake of the sweep of national sentiments, it will be interesting how the Supreme Court deals with the petitioners arguments in the open hearing. The petitioners will certainly request the presence of some retired officials for interrogation. Will the Supreme Court allow that? In any case, the hearings will be very embarrassing for the Modi government and also the Prime Minister himself in the present period of the Government and the BJP led frenzy.
As senior advocate Indira Jaising has pointed out 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 first 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. The Supreme Court bench has to go into all these and decide now.
Nitya Chakraboty is a freelance journalist. Views are personal.