Rafale: Court cannot base its decisions on Media Reports, Central govt to Supreme Court

The Central government has filed two affidavits before the Supreme Court in the Review Petitions in the Rafale case. It has submitted that no review of the Court’s December 2018 judgment is warranted.

In one affidavit, the Centre has rebutted the petitioners’ grounds for the review of the December 2018 judgment. The second affidavit is a reply to the application by the petitioners seeking production of specific documents in relation to the Rafale deal.

It is submitted by the Centre that the Petitioners’ attempt, in the interlocutory application, to call for the production of documents is to get a “roving or fishing enquiry ordered”. This, the Centre avers, is a complete misuse and abuse of the legal process.

Further, the Centre has also averred that monitoring done by the PMO of the Government on Government negotiation process cannot be said to be an interference in the process or a parallel negotiation.

“It is further submitted that monitoring of the progress by PMO of this Government to Government process cannot be construed as interference or parallel negotiations. The then Hon’ble Raksha Mantri had recorded on file that …”it appears that PMO and French President’s office are monitoring the progress of the issues which was an outcome of the summit meeting.””

While opposing the Review petition itself, the Centre has alleged that despite a limited scope of the Review, the petitioners have placed reliance on media reports and incomplete file notings, which they procured unauthorizedly, to get an order of inquiry in the deal.

The Centre has also raised questions against the Court’s decision of dismissing Centre’s preliminary objections against the admissibility of the documents relied upon by the petitioners in the Review Petition.

“The judgment of the Court dtd 10^th April 2019 would imply that any document marked Secret obtained by whatever means and placed in public domain can be used without attracting any penal action.

… This could have implications in the financial sector also if say budget proposals are published before they are presented in Parliament. Such disclosures of Secret Government information will have grave repercussions on the very existence of the Indian State.”

The Court does not base its decisions on media reports, the affidavit says adding that the media reports annexed by the petitioners in the petition were all published post the December 2018 judgment of the Court in an attempt to reopen the issue.

The Central government has also stated that once the Court has held that there cannot be an inquiry based on the perception of individuals, there is no basis for a CBI inquiry.

“Once the Court has held that perceptions of individuals cannot be the basis of a fishing and roving inquiry by this Court, there is no basis for a fishing and roving inquiry by the CBI.”

On the specific issue of the file notings accessed by the petitioners, along with media outlets, the Centre has stated that those are mere opinions of various functionaries which ought to be considered by the competent authority for taking the final decision. These expressions of opinion cannot be the basis for litigants to question the deal or seek a review.

“It is well settled by this Hon’ble Court that in governmental functioning files are generally examined/seen by various agencies and functionaries in the hierarchy.  While doing so there is free and frank expression of views /candour of opinion expressed by the functionaries. These  internal file notings and views contained therein are mere expression of opinion/views for consideration of the competent authority for taking final decision in the matter.”

The Centre has further submitted that the pricing details in the deal were “thoroughly scrutinized by the CAG” which concluded that the price of procurement was lower than the audit aligned price. Thus, the primary argument of the petitioners regarding exorbitant prices finds no support in the CAG report.

The Centre has thus, opposed the Review of the Court’s main decision and has also prayed for the Application for production of documents to be dismissed.

[Read Centre’s Reply]

Read Centre’s Reply to Application seeking production of documents:

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