Need a de novo hearing on Rafale

The eye-popping report published in The Hindu tells 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 complete 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 PM".

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 euros 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 regarding 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 to take a point of view on the 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 first issues framed by the Court was the question of 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 aircraft 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 recalling 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 a sealed cover to the court.

(Courtesy: The Leaflet. The writer is a Senior Advocate at Supreme Court. Views expressed are strictly personal)