Rafale: Supreme Court reserves verdict in Review and Contempt Petitions

Bar & Bench May 10 2019

The hearing before the Supreme Court in the Rafale Review case is currently underway.

The review petitions have been filed against the Court’s December 2018 judgment, by which it dismissed petitions calling for an investigation into the Rafale deal.

The review petitions preferred by Yashwant Sinha, Arun Shourie, Prashant Bhushan and Sanjay Singh claim that the judgment is based on “errors apparent on the face of the record” and ought to be recalled.

The contempt petition filed by Meenakshi Lekhi against Rahul Gandhi will also be heard by Rafale Bench today.

The petitions are being heard by a Bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph.

Rafale before Supreme Court

December 14, 2018 – Supreme Court dismisses petitions calling for probe into Rafale Deal

December 15, 2018 –  Rafale: SC misinterpreted present for past tense, Centre seeks correction in Para 25 [Read Application]

February 26, 2019 – Supreme Court allows open court hearing in Rafale Review Petitions

April 10, 2019 –  Rafale Review Petitions will be heard on merits, Centre’s objections on admissibility of documents dismissed by SC

May 9, 2019 –  Judgment obtained through multiple falsehoods and suppression, petitioners in rejoinder

May 9, 2019 – Mismatch between Supreme Court judgment and submissions on CAG report not substantial error, Centre

Live Updates of today’s hearing follow:

See our Live Thread on Twitter

Prashant Bhushan

  • Advocate Prashant Bhushan commences arguments in the review petition.
  • The first main ground for review is that the December 2018 judgment proceeds on basis that petitioners were seeking cancellation of contract We were not, we were only seeking probe and registration of FIR based on Lalita Kumari judgment, submits Bhushan.
  • The second ground is that the judgment has errors largely due to reliance on incorrect information supplied by Central govt, says Prashant Bhushan
  • In fact, the government itself has filed a correction application, submits Prashant Bhushan.
  • How did govt know certain portions will be redacted in CAG report? How did govt in November 2018 know CAG will redact portions of pricing in a report in 2019?, asks Bhushan.
  • I can understand errors of “is” “will be” etc, which government claims. But this anticipation regarding redaction of CAG report is  not understandable, submits Bhushan
  • Material information regarding the last meeting of cabinet committee and dropping of eight clauses in contract were concealed by the Centre from Supreme Court, argues Prashant Bhushan
  • Why did they drop those anti-corruption clauses? Their reply is silent on it. This alone is sufficient ground for vitiating the judgment, Prashant Bhushan submits.
  • Till today no explanation is forthcoming on why those clauses dropped, says Prashant Bhushan.
  • Three defence experts of International Negotiating Team had submitted a dissent note taking objections with respect to the pricing of aircrafts, argues Bhushan
  • Bhushan making submissions on objections taken by the three defence experts on various aspects like pricing, bank guarantee. The letter of comfort offers no comfort, submits Prashant Bhushan
  • Ultimately deal went ahead without any guarantee, no bank guarantee or sovereign guarantee, Bhushan submits
  • Even the delivery of aircraft is going to be delayed. The explanation earlier was that 36 aircraft will be delivered quickly which is not the case, Bhushan
  • Should the government not have told the Court about the crucial dissent notes by the three domain experts, asks Bhushan.
  • Prashant Bhushan submits that another troubling issue is of benchmarking.
  • Manufacture of 108 aircraft in India (as per earlier deal) included Transfer of Technology, Prashant Bhushan.
  • We have sought production of all documents. They can redact details relating to national security. In any case they can share it with the Court, Bhushan
  • Bhushan rebuts claims of Centre that PMO was only keeping track and there were no parallel negotiations by PMO.
  • Even the NSA was clearly playing role. There are so many things in this case which more than meets the eye and require investigation, Bhushan contends.
  • Several new facts that have emerged. There was a meeting between Ambani and French authorities at the time when Prime Minister issued statement of new deal. Around the same time he gets a huge tax exemption from French govt, submits Prashant Bhushan.
  • Prashant Bhushan concludes his arguments.

Arun Shourie

  • Arun Shourie begins arguments on perjury application.
  • The government says all documents can be shared with CAG. Then why can’t they share it with the court, asks Arun Shourie?
  • Each of the errors in the judgment can be traced to the false submissions of the Central govt to Supreme Court. You (court) placed trust in the govt and govt abused your trust, submits Arun Shourie.
  • Shourie pointing out such errors in the judgment which was a result of wrong submissions by govt. There are so many of such errors that they are not accidental, Arun Shourie argues.
  • You have reproduced sentence from govt note. It breaks my heart that the govt betrayed your trust, Arun Shourie concludes.

Vikas Singh

  • Govt owes an apology to this court and nation, Senior Advocate Vikas Singh for one of the petitioners.

Attorney General KK Venugopal

  • Attorney General KK Venugopal commences submissions on behalf of Central Government.
  • Certain original grounds were raised by petitioners. Those grounds have been re-agitated by adding various aspects, submits AG KK Venugopal.
  • The question of price is covered by Article 10 of Intergovernmental agreement, AG KK Venugopal.
  • The pricing was not to be disclosed as per IGA, says AG KK Venugopal.
  • Your Lordships did not want pricing to be disclosed but only asked for procedure. We produced the procedure. Even if there are errors in it, it won’t be a ground for review, AG KK Venugopal.
  • AG refers to CAG report conclusions to buttress claim that the new deal was cheaper. They want to question the deal which affects the security of people of this country, says Venugopal.
  • This (aircraft) is not for ornamentation. This is an essential requirement for the protection of each and every one of us. Nowhere in the world will any such matter be brought before a court, AG KK Venugopal.
  • What is your response to submission on Lalita Kumari case, asks Justice KM Joseph.
  • AG responds by citing CAG report. Is this how a defence matter is argued, AG asks.
  • Justice KM Joseph persists with his question on Lalita Kumari on registration of FIR. According to Lalita Kumari, there has to be a prima facie case to proceed with it, says AG KK Venugopal.
  • Venugopal submits that there should be a prima facie cognizable offence for Lalita Kumari to apply.
  • Justice KM Joseph asks about Transfer of technology and advantages of the same.
  • Who is to decide that. Will this court decide, asks AG KK Venugopal.
  • What about sovereign guarantee, asks CJI Ranjan Gogoi.
  • AG Venugopal citing precedents with Russia and US when bank guarantee was waived for defence procurements.
  • What about the dissent of three domain experts, asks Justice KM Joseph 
  • They examined the whole aspect. The concerns raised by the three members were referred to Defence Acquisition Committee, AG KK Venugopal.
  • Eventually, the three dissenting members agreed, says AG KK Venugopal.
  • Do you have objections to make the said consent of three members available to this court?, asks Justice KM Joseph.
  • Your Lordships should not go into it, says AG Venugopal citing jurisdictional limitations. But if Your Lordships still want it, I will, says AG KK Venugopal.
  • Hearing concludes in the review petition.

Rahul Gandhi Contempt Hearing Commences

  • Mukul Rohatgi for Meenakshi Lekhi says Rahul Gandhi led public astray by saying Supreme Court said Chowkidar chor hai. Hence, the Court should pass an order asking Rahul Gandhi to apologise.
  • Senior Advocate Abhishek Manu Singhvi says he had expressed regret even before court had issued notice. When court did not accept that regret is equivalent to apology, he filed an affidavit expressing apology; Case deserves to be closed.
  • Hearing concludes in review and contempt petition; Judgment reserved by Supreme Court. Written submissions can be filed by parties in two weeks.

[Read Order]

Rafale Review judgment reserved

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