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Three Reasons Why the Supreme Court Decided Not to Review Its Rafale Verdict

The petitioners' argument that the Supreme Court’s December judgment was based on crucial false statements seemingly found little truck.

New Delhi:  The Supreme Court on Thursday put an end to the legal aspect of the Rafale controversy, dismissing a clutch of petitions that called for a review of its decision not to order a probe into the 36 fighter-jet deal. 

The judgment, delivered by a three-judge bench comprising Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph, declared that the review petitions “are without any merit”.

It also re-emphasised that the apex court’s verdict was based within the contours of “Article 32 of the Constitution of India”, implying that its scope for judicial review was limited.

“It does appear that the endeavour of the petitioners is 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 notes.

The verdict comes with two concurring opinions. The first is by Justice S.K. Kaul, who has authored a judgement for CJI Gogoi and himself. This opinion is brief and brushes aside most of the concerns raised by the review petitions.

The other, by Justice K.M. Joseph, spends some time dwelling more broadly on the nature of “review jurisdiction” and the constraints in ordering an investigation.

Why did the apex court eventually decide against reviewing its earlier verdict? The Wire breaks it down.

Errors and flaws in judgment?

One of the arguments put forth by some of the petitioners is that Supreme Court’s judgment in December 2018 was based on a crucial handful of false statements. 

The review petition put forth by Arun Shourie, Yashwant Sinha and Prashant Bhushan alleged that some of these misstatements were purposefully put forth by government officials with the intent of misleading the court. Some of the errors that were highlighted at the time included a non-existent CAG report and mixing up one Ambani brother for the other.

Also read: Rafale Review Petition: Full Text of Written Submissions by Bhushan, Shourie and Sinha

The judgment however ultimately concludes that these errors have either been fixed (in the case of the CAG report) or are not important enough to impact the final outcome (Ambani brothers).

“In the course of the review petitions, it was canvased before us that reliance had been placed by the Government on patently false documents. One of the aspects is the same as has been dealt with by our order passed today on the application for correction and, thus, does not call for any further discussion,” Justice S.K. Kaul’s opinion notes.

On the issue of Mukesh Ambani’s Reliance Industries being mistaken for Anil Ambani’s Reliance Defence, Justice Kaul says not much “can be made out” of that error: 

“An aspect also sought to be emphasised was that this Court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother. That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.” [Emphasis added by The Wire.]

Justice K.M. Joseph goes one step further, noting that the court may have “fallen into clear error”, but does not believe that there is any evidence to show there was commercial favouritism in the Rafale deal.

The judge’s opinion notes:

“There appears to be considerable merit in the case of the petitioners that in this regard, this Court had fallen into clear error that there was possibly an arrangement between the parent Reliance Company and Dassault dated back to the year 2012. The parent Reliance Company which was referred in the judgment is Reliance Industries which is a completely different corporate body from Reliance Infrastructure which appears, according to the petitioners, to be the parent company of RAL.

From the standpoint of the jurisdiction in judicial review proceedings and under Article 32 of the Constitution, as also absence of any substantial material to show to be a case of commercial favouritism, it may be true that the findings other than which has been referred to may not disclose a palpable error.”

Procedural ‘deviations’ or not?

As the review petitioners, and The Wire, have noted, the Supreme Court’s original December 2018 judgment examined the deal from three primary aspects and chose to ignore other potential deviations in the Rafale procurement process.

The areas that may have needed further clarity or a possible probe included the lack of a sovereign guarantee, changes in the benchmark price, the lack of an ‘acceptance of necessity’ and the manner in which Hindustan Aeronautics Ltd was dropped and Reliance Aerostructure chosen as an offset partner.

The court acknowledges that the review petitions make reference to all these issues, but states that just because there were different opinions expressed during the decision-making process, it does not imply wrong-doing.  The verdict also adds that it is disinclined to take up new information at this review stage.

Rafale judgment by The Wire on Scribd

“Insofar as the decision making process is concerned, on the basis of certain documents obtained, the petitioners sought to contend that there was contradictory material. We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it,” Justice S.K. Kaul’s opinion notes.

Indeed, the verdict appears to reprimand the petitioners, saying that they want to “construe themselves as an appellate authority” and then call upon the court to examine each aspect of the contract.

Justice S.K. Kaul scathingly points out:

“It does appear that the endeavour of the petitioners is 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.

All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process.

Insofar as the aforesaid pleas are concerned, it has also been contended that some aspects were not available to the petitioner at the time of the decision and had come to light subsequently by their “sourcing” information. We decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters.” [Emphasis added by The Wire]

On pricing and registering a CBI FIR

The Supreme Court acknowledges that one of the aspects raised in a review petition is that the contract was “reviewed prematurely” by the judiciary and that if a CBI investigation had taken place, more facts may have come out into the open.

Also read: Contempt Case: SC Tells Rahul Gandhi to ‘Exercise More Caution’ in the Future

The two opinions take a nuanced view on the matter. Justice S.K. Kaul points out that he does not consider this to be a “fair submission”, considering that they had examined the original petitions on three aspects of merit all of which they did not consider justifiable enough to order a CBI investigation.

“We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for,” the opinion notes.

Justice K.M. Joseph argues that while the apex court was “not satisfied with the material which was placed to justify a decision in favour of the petitioners”, there are no restrictions on an officer from investigating the case under the law.

“It is equally indisputable that the entire findings are to be viewed from the standpoint of the nature of the jurisdiction it exercised. There are no such restrictions and limitations on an Officer investigating a case under the law. Present a case, making out the commission of cognizable offence, starting with the lodging of the FIR after, no doubt, making a preliminary inquiry where it is necessary, the fullest of amplitude of powers under the law, no doubt, are available to the Officer,” the judge notes.

“I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No.298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act.”

Finally, on the matter of pricing, which there was some confusion, the Supreme Court reiterates that it is “satisfied with the material available”.

It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities,” the verdict noted.