Re-cap of the Rafale Controversy:
In December 2018 the Supreme Court dismissed petitions which sought an investigation into the deal of the Rafale fighter jet, to probe into the process of procurement and the controversy surrounding therein. The issue was on the decision of the Modi government to buy 36 Rafael Jet Fighters for 7.85 billion euros. The petitioners included lawyer Manohar Lal Sharma, AAP legislator Sanjay Singh and the trio of Yashwant Sinha, Arun Shourie and Prashant Bhushan. The issues raised in the petitions concerned over the process through which the jets were procured, alleged last-minute inflation in the price and the alleged impropriety in awarding offsets to Anil Ambani’s Reliance Group.
SC dismissed the petition for probe into the Rafael jet deals.
While dismissing the petitions and rejecting to intervene in the matter with an investigation, it said that there seems to be no probable reason to doubt the decision-making process. The Narendra Modi government and allies saw the coming of the verdict as a little victory. Presiding over the matter was a three-judge bench of the Supreme Court comprising of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph. The bench remarked that it is not feasible for the Court to sit and decide as to why 36 aircraft were bought instead of 126. It said, it is a ‘hard-fact’ that the earlier negotiation of the 126 jets could not be materialised and thus a new deal of 36 aircraft were made. Moreover, on the aspect of decision making regarding the transactions it clarified that on studying the material placed on record and interacting with the senior air force officer, there is no emerging reason to doubt their decision making. It said that the Court is satisfied that the process is correct and there is no occasion to raise a doubt.
Moreover, it also stated that it is possible that minor deviations might have occurred from the set procedure. Still, the gravity of these deviations is not such that it would set aside the contract or require scrutiny with the intervention of the Court. Another issue raised by these petitions was that of pricing. It said that it is not the job of the Court to examine specific financial details such as the cost of an individual aircraft which is being dealt regarding.
Offsets in contract to Reliance Group cannot be examined by the court: SC
Before the Court, it was also raised about the issue concerning offsets awarded to the Reliance Group headed by Anil Ambani. The Court dismissed the argument stating that it was the job of the Centre and the vendor to decide and the Court cannot interfere. It said it would neither be appropriate nor feasible for the apex court of the country to look into the offsets of a contract. The verdict quoted:
“Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters,” the decision says.
Soon after the pronouncement of the judgment, advocate-activist Prashant Bhushan said that the verdict of the Supreme Court in this regard was absolutely false and ‘totally wrong’. He went ahead to noted that the Court has not looked into a number of issues as raised by the petitioners, thus calling it a ‘limited clean chit’. Since then, the possibility of filing a review petition is being explored. Bhushan was seen saying that on speculations of wrongdoings in the deal, all the petitioners prayed or was a probe, which could have ended either way.
Review petition in the Rafael Deal rejected by the Supreme Court:
After that, came a swarm of petitions calling for a review of the decision as given by the Supreme Court. Along with many other awaited decisions, the Supreme Court has finally pronounced its judgment in the review on the matter of deals concerning the 36 fighter-jets. The review decision was pronounced by a three-judge bench consisting of Chief Justice of India Ranjan Gogoi along with Justices Sanjay Kishan Kaul and K.M. Joseph, saying it is ‘without any merit’, dismissing the review. Furthermore, it emphasised that the verdict of the apex court had come from the power vested in under Article 32 of the Indian Constitution. Thus, there is the only limited scope of judicial review, permissible under law. The judgment noted that:
“It does appear that the petitioners endeavour to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised.”
The judgment has been passed with two concurring opinions, by Justice S.K. Kaul & Justice K.M. Joseph. The decision brushes away most of the concerns as raised in the review petition and more profoundly delves into the nature of ‘review jurisdiction’ of the Supreme Court.
Arguments in support of a review petition:
One of the cases which were strongly advocated throughout the review was that the decision of the Supreme Court as pronounced in December 2018 is ‘based on a crucial handful of false statements’, reported The Wire. The petitioners seeking review of the Court were Shourie, Yashwant Sinha and Prashant Bhushan. The petitioners alleged that some of these misstatements were purposefully put forth by government officials with the intent of misleading the Court in a fair pronouncement of the decision. They pointed out some of the errors that were highlighted at the time, including a non-existent CAG report and mixing up one Ambani brother for the other. However, in the review judgement, as it has been pronounced, the Court has said that either the discrepancies have been fixed or are not at all relevant enough to have impacted the final outcome. Therefore, the Supreme Court dismissed the issue saying ‘issue has been dealt with…does not call for any further discussion’. On another matter where the Court had misconstrued Reliance Industries as one group, however, the two Ambani brothers have two different groups, the Court said that “much could not be made out of it” and that this aspect was referred to in a “generic sense”. Clearing the air around the issue, Justice K.M. Joseph noted that the might have “fallen into clean error”, but there is nothing to believe that there is any evidence for commercial favouritism in cracking the deal.