‘Incorrect Fact’ May Not Change SC’s View On Rafale Deal

Saying that a part of the Supreme Court’s judgment on procurement of 36 Rafale fighter jets is based on an incorrect factual posi­tion, the Centre has applied for a correction in it. In its judgment, the apex court had ruled out a corruption inqu­iry against Prime Minister Narendra Modi. ‘Incorrect fact’ refers to the government’s stand that an audit report on the price of the jets was placed by the Comptroller and Auditor General (CAG) before the parliamentary public accounts committee (PAC). There has been a massive increase from the price per plane offered by Dassault during the UPA’s planned acq­uisition of 126 aircraft and the present inter-government deal signed by the Modi government for 36 fighter jets.

In its verdict, the court noted: “[A]s per the price details, the official respon­dents claim there is a commercial advantage in the purchase of 36 Rafale aircraft. The official resp­ondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package. It is certainly not the job of this court to carry out a comparison of the pricing det­ails in matters like the present.” Despite alleged mismanagement and use of influence, there is as yet no trail of kickbacks unlike other def­ence scams. The petitioners had not pla­ced any material on record to show PM Modi or anyone else in government benefited from the deal. The petitioners—lawyer Prashant Bhushan, former NDA ministers Yashwant Sinha and Arun Shourie—say they will file a review petition. There has been public outrage about the supposed CAG report, whose draft had not been shared with the defence ministry or the PAC. putting the attorney general in an embarrassing position.

However, the court has not explicitly  said that its decision was based in any way on the audit report. Instead, it seems to have gone through the notes supplied to it inside a sealed cover. And whatever was suppl­ied is under a cloud right now due to the error in it.

So will the correction change the court’s view? “No,” says a senior Supreme Court lawyer. “The bench has applied judicial forbearance through a limited, not substantive, judicial review. Even without the lines about the CAG report, the judgment will stand.” The request for clarification can only be a review of the judgment, without any public hearing of pleas, and the court can even refuse to make the corrections.

There has been a cry to call this perjury and contempt, but it is not known whether the court would agree, with limited ground to say its decision was influ­enced by wrong information.

The court has also refused to look into the choice of commercial partner by Das­sault. The SC referred to a 2012 und­e­r­standing between Dassault and Reliance. That was an MoU with Reliance MDAG. It was much later that Dassault made an MoU with Reliance ADAG, culminating in a joint venture company in 2016. This error may not be substantial ground for the court to now examine Dassault’s commercial decision..

The petitioners had alleged an attempt to influence the choice of offset partner and sought a CBI probe. A similar complaint by an NGO in France led to an ­inquiry by its national public prosecutor against Dassault and the French gover­nment. But, the Supreme Court has said there is no reason to probe the choice of offset partner, though an independent inquiry could have approached the ­former French president for clarification. It also held that the minor deviations from procedure in acquisition did not warrant judicial scrutiny.

The petitioners, however, feel there was a major deviation. A news report alleges that NSA Ajit Doval interfered in the ­acquisition process. And even as the BJP and defence minister Nirmala Seetha­raman welcomed the judgment, the Con­gress led public campaigns over the wrong statements to court. Its MPs have moved Parliament for breach of privilege (subject to the speaker’s approval) against the PM. “All this could have long-term consequences on diplomatic relations by indirectly accusing the French government and company of being partners-in-crime,” says Kanwal Sibal, former foreign secetary and ambassador to France. “It will also be difficult to take a step back from an abusive stand against the PM based on a grammatical error in the mat­erial inside the sealed envelope. Barring non-adherence to some provisions, there is nothing on record. That’s why the court didn’t order an inquiry.”

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• The Centre says its stand that the CAG placed an audit on the price of the jets before the PAC was incorrect.

• The Supreme Court has not explicitly said its judgment was based in any way on the CAG ­report on prices.