Finance Minister Arun Jaitley’s 40 minute reply to Rahul Gandhi’s attacks on the Rafale deal on Wednesday in Lok Sabha had all the qualities of a legal luminary and an orator but it had no answers to the pointed questions raised by the Congress president against the manner the Prime Minister Narendra Modi unilaterally announced the deal. The FM made all the insinuations against the Congress leader and his family without touching the pertinent issues regarding the decision making process. The only point which had some relevance was the point that the Supreme Court dismissed the petitions demanding court mentioned probe but this judgment of the Supreme Court given on December 14 last year, was also based on the government note with documents given in sealed cover which had not been verified.
Now, after the opening of the Supreme Court on January 3 following winter vacation, a review petition has been filed before the apex court by the trio-Yashwant Sinha, Arun Shourie and Prasant Bhusan seeking a review of the December 14 judgment that upheld the Government’s decision making process in purchasing Rafale planes, based on the sealed documents provided by the Government. In fact, the review petition is seeking a recall of the judgment. Whether the Supreme Court agrees to the recall of the judgment or not, the facts in the review petition are so strong that the apex court has to go into the review petition and assess the situation afresh after the verification of the official documents.
Only last year, the Supreme Court reviewed its 2013 decision on retaining Section 377 which criminalises gay sex by overruling the Delhi High Court judgment decriminalising it in 2009 and gave verdict annulling the section 377 apart from suggesting other forward looking changes. In Rafale case, the issues are no less important and the documentary evidences given by the petitioners in the review petition are sufficient to draw their attention to an immediate review. In Sabarimala case, the Supreme Court has agreed for an open hearing on January 22. Here also, there is a case for an open hearing where the HAL Officers Association, as also the engineers associated with the negotiations, can be called.
Interestingly, the centre has also submitted an application for correction in the December 14 judgment regarding the submission of the report of the CAG on the pricing issue and its status before Parliament. This is an embarrassing issue for the learned judges of the bench headed by the Chief Justice because the Government petition points out that the errors were committed because of the non understanding of the tense in the language used in the Government note given in the sealed cover. Since the clear signal on the decision making has been given on this erroneous understanding of the Government note, it is all the more necessary for the apex court to clear the air by coming out perfect and clean. The review petition gives the learned judges that opportunity.
The fact is that the centre cleverly drafted its note on the CAG report on pricing. The centre’s submission had recorded that under paragraph 25 of the judgment, it had stated that pricing details were shared with CAG and that the report was examined by the PAC. Only a redacted portion of the report was placed before the Parliament, the judgment said. Since there is no ready CAG report yet, the centre had to clarify in its submission by saying that the centre’s note used the word “is” which describes the procedure followed normally. Similarly, the judgment used the word “was” in respect of the presentation of a portion of redacted report in Parliament, whereas the centre only wrote “is” to describe the normal course. There is every reason to believe that this manner of writing is like Mahabharat’s Aswathama Hata iti Gaja episode. The centre tried to mislead the judges through clever wording.
The Supreme Court has mentioned in its judgment that its decision to deny a probe is primarily from the standpoint of the exercise of jurisdiction under article 32 of the Constitution of India which has been invoked in the present group of petitions. On pricing, the Court has refused to get drawn into the debate between the Modi government and the opposition on whether the higher or better price was struck for the 36 aircraft that was previously on offer. “It is certainly not the job of this court to carry out a comparison of the pricing details in matters like the present,” the judgment said. So what is Arun Jaitley talking about by stating that the Supreme Court has cleared the Modi government of all charges leveled by Rahul on Rafale deal?
The finance minister is an articulate person and he is the best available fire fighter right now of the Modi government. It is quite possible that Jaitley himself was not fully aware before of the Prime Minister Narendra Modi’s sudden announcement in Paris on new Rafale deal on April 10, 2015. It was like a decision was taken first and then the follow up meetings and documents were made ready to justify the decision. The finance minister spoke for 40 minutes at the instance of the Prime Minister by focusing on the lapses of Gandhi family rather than the details of the Rafale deal since that has been given clean chit by the apex court. This is no way a vital defence acquisition issue is dealt with. A detailed review by the Supreme Court bench is of imperative need at this hour to find out the truth.
Nitya Chakraborty is a freelance journalist. Views are personal.