Ex Post Facto Corrections: Rafale Goes Back to Court

Despite the Supreme Court’s dismissal of the petitions seeking a probe into the Rafale deal, the Congress has hit at the Bharatiya Janata Party (BJP) government over an inconsistency, and has demanded a Joint Parliamentary Committee (JPC) probe into the deal. The source of the inconsistency that has arisen lies in paragraph 25 of the Order. The Supreme Court, in this paragraph, mentions that they have seen a Comptroller and Auditor General (CAG) report on the deal that has also been seen by the Public Accounts Committee (PAC) of Parliament. After the furore, the government has filed an affidavit for corrections amid allegations that they misled the Court.

Despite what the government may claim, they did not receive a ‘clean-chit’ from the Court. This is evident from the last sentence of the Order, which states: “We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.” This implies that the Court was constrained by Article 32 with relation to the petitions, however, this does not bar other actions or inquiries to be conducted. Now that the government is seeking a correction of a fact that the Court presumed to be true, the shadow cast on the government grows darker.

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Congress Leader of Opposition in the Lok Sabha and the head of the Public Accounts Committee (PAC), Mallikarjun Kharge had publicly stated that he never saw the CAG report referred to in the Order. The other issue arose on the redacted portion of the report being placed before Parliament, and available in the public domain. This redacted portion of the report has not been made available on the websites of the Lok Sabha, Rajya Sabha or the CAG. Yet in paragraph 25 of the Order, the Court has stated:

“The material placed before us shows that the Government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries.The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament, and is in public domain.”

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The government has confirmed that Kharge’s stand is correct. By seeking a correction, they have not contradicted him. However, by filing the affidavit, they have sought to avoid being accused of perjury which attracts anywhere between three to seven years of imprisonment. In this regard, one could speculate that seeking a correction of a fact would entail reopening the case. Since the pricing details were submitted to the Court in a sealed cover, the petitioners had no opportunity to question the same. This perhaps led to this situation.

The government, in response to the questions raised by Kharge and the Congress’ statements regarding this paragraph, has filed an affidavit seeking corrections in the Order in this regard. New Delhi Television (NDTV) has reported that the government claims that the Supreme Court misunderstood the contents of the sealed cover. The government has disclosed that the cover contained the pricing details as well as the procedure for laying the report before the PAC. The unanswered question here is what was the need to place the procedure for audit and for laying the report before the PAC in the sealed cover when the process had not even been initiated? On the other hand, since the government now claims that the Court misunderstood the contents of the sealed cover, will the Oder still remain? Since the Court divided its Order on the basis of the three issues, viz. the decision-making process, differences in pricing, and the choice of the Indian Offset Partner (IOP), would the issue of pricing be severable?

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The discrepancy and the subsequent back-pedalling ordinarily could be the basis for starting a JPC probe. A JPC is an ad hoc committee created to probe a particular matter. As the name suggests, the members of a JPC are drawn from both houses of Parliament, and it can consist of any number of members. However, since the strength of the Lok Sabha is twice that of the Rajya Sabha, the JPC will have a similar representation. The key feature of a JPC is that it consists of Parliamentarians from several parties. However, to set up a JPC, both the houses of Parliament need to agree irrespective of which house the proposal originated.

If in the unlikely event a JPC probe is ordered into the Rafale deal, the veracity of the government’s submissions to the Supreme Court will certainly come under scrutiny. However, the first battle is setting one up. Since the BJP has a majority in the Lok Sabha, all it will take to defeat the probe is for the Lok Sabha to ignore the proposal. The probe can be conducted at any time, hence, the only way such a probe can be conducted is when the BJP does not have the majority in both the houses of Parliament. But now that the government has put the ball back in the Supreme Court, the question is whether this will constitute a sufficient ground to rehear the matter.