The Supreme Court verdict on Wednesday morning dismissing the Centre’s preliminary objections to consider documents “stolen” from the defence ministry and published in the media as evidence in the Rafale deal review petition, on the eve of the starting of the Lok Sabha elections on April 11, is a landmark development in the ongoing political battle in the country between the Prime Minister Narendra Modi and the opposition led by the Congress president Rahul Gandhi over the corruption issue.
The Supreme Court bench led by the Chief Justice of India Ranjan Gogoi and Justices Kishan Kaul and K M Joseph agreed to hear the review petition on their December 14, 2018 judgment dismissing all the earlier petitions. The apex court will soon fix a date for the hearing of the review petition filed by the trio Prashant Bhushan, Yashwant Sinha and Arun Shourie.
The significance of the verdict is that the Court ruled out the Centre’s objection on the issue of national security also and it was made clear that the documents available in the media, will be judged on the basis of merits. The order means that the classified documents sourced by the media without authorisation can be considered as evidence and the basis for reexamining the December 14 verdict.
The Supreme Court could see the game of the Modi government which at first submitted wrong documents and misled the SC bench to pass the December 14 judgment on the basis of erroneous interpretation. Thereafter, when the actual documents came out in media, the Government at first said these were false and then took the plea of stolen documents and risk to national security if those were given credence by the apex court.
The bench has exposed the deceit of the Modi government and its lawyers and is now ready to hear the review petition on the basis of the documents submitted by the petitioners. This will open a Pandora’s Box and this has all the potentiality of a Watergate type situation if the Supreme Court acts taking into account the role of the Prime Minister’s Office in influencing the Rafale deal announced by the Prime Minister unilaterally on April 10, 2015 in Paris.
The petitioners went to the Supreme Court with their review petition seeking the Court to examine the three crucial documents published in The Hindu after December 14 and praying to order a CBI probe on the role of the PM in influencing Rafale deal. The fact that the SC has agreed to examine the documents published by The Hindu, itself vindicates the position of the petitioners since those in unambiguous terms expose how the PMO carried on parallel negotiations overruling the authorized negotiating team of the defence ministry.
Once the Court in its next hearing goes into the details of the documents, the PMO’s bias in favour of the French company and the Anil Ambani led Reliance Defence at the cost of national interests, will be exposed. That was why the Attorney General K K Venugopal constantly tried in the Supreme Court to block the consideration of these documents taking the plea of national security. He could not say that the documents were not authentic, he only said that these were photocopied and unauthorized. The Court bench dismissed his contention of national security and agreed to consider the documents on merits.
For instance, on November 18, 2016, in response to a question asked in the Lok Sabha on the acquisition of fighter aircrafts, the MoS, Defence stated that, “Inter-Governmental Agreement with the Government of French Republic has been signed on 23.09.2016 for purchase of 36 Rafale aircraft along with requisite equipments, services and weapons. Cost of each Rafale aircraft is approximately Rs 670 crore and all the aircraft will be delivered by April 2022.”
The scam was however revealed when the actual price of 36 aircrafts was revealed in a Press Release by Dassault and Reliance and Financial Press Release statement of Dassault for 2016. Both the documents show the total price of the deal to be about Rs 60,000 crores (about 8.139 Billion Euros) for 36 aircrafts. It works out to Rs 1,660 crores per plane. This is more than double the price of the aircraft under the earlier 126 MMRCA deal.
And almost Rs one thousand crores more than the price that was furnished by Government itself to Parliament on November 18, 2016. This has resulted in a loss of over 36 thousand crores of rupees to the public exchequer at the cost of national security to benefit a private company.
According to legal expert Ajitesh Kir, the principal legislation that deals with public sector corruption in India is the Prevention of Corruption Act, 1988 (POCA). The Act was recently amended by the parliament (in July 2018); new provisions were added (such as bribery by commercial organisations) and others were amended (such as criminal misconduct by public servants).
The amendment exercise was purportedly necessitated by India’s obligation, under the United Nations Convention Against Corruption, to strengthen its domestic anti-corruption law. The prosecution is not required to prove mens rea (wrongful intent) to convict a public servant under the offence in question. The complainants have alleged that Prime Minister Modi’s decision to renegotiate a new defence deal with France was contrary to prescribed guidelines and public interest and that it resulted in pecuniary advantage to a private party. His conduct, it is alleged, amounts to corruption.
Mr. Kir observes since Section 13(1)(d)(iii) does not require proving mens rea, it need not be shown that the prime minister or the former defence minister or any other public servant “intended” to provide pecuniary advantage or a valuable thing to the private parties named in the CBI complaint (Anil Ambani or Reliance Aerostructure Limited or Dassault Aviation).
All that the prosecution needs to do is to satisfy the objective criterion which focuses primarily on the decision-making process and the prescribed guidelines.The way the Supreme Court bench looks at the review petition and the demand for CBI probe, will determine whether Prime Minister can come out of the deal unscathed.
Nitya Chakraborty is a freelance journalist. Views are personal.