Why SC Order on Rafale and Government Application to Correct It Are Highly Flawed

On 14 December, a three-judge bench of the Supreme Court headed by the Chief Justice of India dismissed all petitions calling for a court-monitored investigation into alleged procedural violations committed by Prime Minister Narendra Modi that led to a rise in the price of Rafale fighter jets purchased for the Indian Air Force. Even as government spokespersons and a large section of the media celebrated the apex court’s order for giving a “clean chit” to Modi, the order appears to be deeply flawed. The government’s application that came a day later seeking to “correct” certain factual errors in the Supreme Court has made matters murkier still.

Politicians opposed to the ruling regime, including those in the Congress party, lawyers, commentators and former civil servants are scathing in their criticism of what are described as “glaring” factual errors in the court order and the government’s application seeking to correct these. They allege that what has taken place is a “grotesque” miscarriage of justice.

Having won the assembly elections in Madhya Pradesh, Rajasthan and Chhattisgarh, the Congress together with other Opposition parties have stepped up their demand for an inquiry by a Joint Parliamentary Committee. The Modi government has expectedly rejected the demand.

Speculation is rife about what prompted the three-judge bench to give the kind of order it has. Be that as it may, what is difficult to excuse are the glaring factual errors that have been made in the Supreme Court judgement ­– which concluded with the sentence “…we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircraft by (the) Indian government” – and the government’s application attempting to amend it.

It is pointed out that the highest court did not consider the basic premise of the complaint by petitioners Yashwant Sinha, Arun Shourie and Prashant Bhushan on alleged procedural violations by Prime Minister Modi and the issue of the price of the aircraft. On pricing, the court order states:

“The pricing details have, however, been shared with the Comptroller and Auditor General [of India] (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 (the) public domain. The Chief of the Air Staff is stated to have communicated his reservation regarding the disclosure of the pricing details, including regarding the weaponry which could adversely affect national security.”

Congress President Rahul Gandhi along with the leader of the largest party in Opposition in the Lok Sabha and Chairman of the PAC Mallikarjun Kharge told the media on Saturday that the so-called CAG report is yet to be seen by the PAC. He quipped whether Modi shared the CAG report to a PAC in France.

It is germane to quote the government application requesting the Supreme Court to amend its order at some length:

“That these statements appear to have been based on the note submitted by the Union of India, along with the pricing details, in two sealed covers. These sealed covers were submitted to this Hon’ble Court in compliance with the order dated 31.10.2018, which had directed, inter alia, that the ‘Court would also like to be apprised of the details with regard to the pricing/cost, particularly the advantage thereof, if any, which again will be submitted to the court in (a) sealed cover’

“That in the said note, which was in the form of bullet points, the second bullet point carries the following sentences: ‘The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain’

“That it would be noted that what has already been done is described by words in the past tense, i.e. the Government ‘has already shared’ the price details with the CAG. This is in the past tense and is factually correct. The second part of the sentence, in regard to the PAC, is to the effect that ‘the report of the CAG is examined by the PAC.’ However, in the judgment, the reference to the word ‘is’ has been replaced with the words ‘has been,’ and the sentence in the judgment (with regard to the PAC) reads ‘the report of the CAG has been examined by the (PAC)’

“The submission by the Union of India, to the effect that the report of the CAG ‘is’ examined by the PAC, was a description of the procedure which is followed in the normal course, in regard to the reports of the CAG. The very fact that the present tense ‘is’ is used would mean that the reference is to the procedure which will be followed as and when the CAG report is ready.

Similarly, the statement that only a redacted version of the report ‘is’ placed before Parliament, is referred to in the judgment as ‘only a redacted portion of the report was placed before the Parliament, and is in public domain’

“That unfortunately, an element of misinterpretation of the statement made in the note/bullet points handed over on behalf of the Union of India in the sealed cover, appears to have crept in. This has also resulted in a controversy being raised in the public domain.

“That in this background, it is prayed that this Hon’ble Court may be pleased to direct the following corrections in … its judgement so that any doubts and or any misunderstanding is not allowed to creep in the judgement of this Hon’ble Court. The words, ‘The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain’ may be substituted in place of ‘and the report of the CAG has been examined by the (PAC)... Only a redacted portion of the report was placed before the Parliament and is in public domain.”

After suggesting that these grammatical errors be corrected, the government prayed to the court that in “the interests of justice and … the facts and circumstances of the case,” the following words in the judgement –“The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain” – be replaced by “and the report of the CAG has been examined by the (PAC)… Only a redacted portion of the report was placed before the Parliament and is in (the) public domain.”

The government’s application prayed that the court pass further orders which may be deemed “just and proper” to meet the “ends of justice and in the circumstances of the case.”

There are serious problems with this prayer. First, the government seems to be suggesting that the three judges of the Supreme Court do not understand basic English grammar. Second, the government claims that a note was submitted in a sealed envelope to the Supreme Court not an affidavit. A note may be unsigned but an affidavit has to have an author.

Senior advocate Indira Jaising put it bluntly when she said: “There is no provision in the Constitution of India which allows for a ‘correction’ of a judgment. Only arithmetical or clerical errors can be corrected. The application in substance is a review petition by the Union of India. No senior law officer had settled the application or taken responsibility for the so-called correction. It is also interesting that no affidavits were filed while putting a note in a sealed cover. So, on record, no one can be held guilty of perjury. The court, before relying on the contents of the sealed cover, should have demanded that a responsible officer file an affidavit. This is the normal procedure for claiming privilege for non-disclosure. As things stand, no one knows who prepared the note and who is taking responsibility for the blunder. The so-called error is one of substance and cannot be corrected.”

The government’s claims that it had already shared the pricing details of the Rafale aircraft with the CAG, that the report of the CAG was being examined by the PAC and that only a redacted version of the report is placed before Parliament and in the public domain, are all falsehoods.

Congress Member of Parliament and former Chairman of the PAC K V Thomas said: “This government has lied to the people of the country all the way since it came to power. Now it is lying to the Supreme Court.”

He explained the procedure followed: “Once the CAG finalises a report in consultation with the concerned ministry, it is tabled in Parliament. The CAG cannot place a redacted version of any report to Parliament. It must place the full report. The Parliament then submits the report to the PAC, not the other way round.”

But the big question, asked Thomas, “where is the CAG report in the first place?”

His view is endorsed by Rajeev Gowda, Rajya Sabha MP and PAC member. He said the CAG report is yet to be finalised. “How can the government tell the Supreme Court that the report is with the PAC when it hasn’t been finalised by the CAG?”

Before its report on the Bofors deal, the CAG would not mention names of companies that supplied weapons to the Indian armed forces. T N Chaturvedi, who was the CAG between 1984 and 1990 broke this convention and named names, in this instance, the name of the Swedish manufacturer of field guns or howitzers. He said: “…after discussions with officials I decided that anonymity should be done away with. This practice was initiated by me earlier, and not just in the case of Bofors.”

In an exclusive interview, Chaturvedi ­– who was Home Secretary before he became the CAG and who went on to join the Bharatiya Janata Party and become the Governor of Karnataka – said that there were apprehensions that the named companies may try and drag the CAG to court. He said: “My view was that the CAG works under the mandate of the Constitution. The CAG should bring out full facts to the notice of Parliament. We should only be very careful with facts and figures. The CAG is in a Constitutionally privileged position and the named parties will dare not go to court, including the Supreme Court… I cautioned (my officers) that in sensitive matters relating to defence and scientific research we have to be (extra) cautious, (and) double check (all facts) … (My) officers agreed with me. I assured them that these reports are reports of the CAG – an institution headed by a single individual and he bears the responsibility.”

The former CAG added that changes are made to a draft report only if the CAG and his officers are “satisfied” with the government’s clarifications and if they are not convinced, the CAG can add his own comments by way of rebuttal. After the draft report is finalised, the CAG signs the report and sends it to the President for being tabled in Parliament. For the convenience of government, five copies are sent to it.

Chaturvedi said a convention has grown that the CAG will not disclose its reports till the government lays it in Parliament when it enters the public domain. “A question was once asked of me about delays by the government in submitting a report to Parliament. I said … that I expect the government to be reasonable… I added that as the CAG I have to respect my oath of office. (But the) CAG has no oath of secrecy. So … (my) conscience and judgment … dictate as (to what is) Constitutionally appropriate (and what the) CAG can and should put it in public domain… and more so if he feels that it is essential to do so in national interest and then face the consequences.”

Significantly, the former CAG told us that if a redaction is made to a final report of the CAG after it has been presented to the government, the CAG then does not bear responsibility for it. “It has never happened in the past,” Chaturvedi said emphatically.

Another former CAG, who spoke to us on condition of anonymity, remarked that “if the government redacts anything from a final report of the CAG, it will be in big trouble.” He added that the government has no right, power or authority to redact anything from a final CAG report.”

Former Union Minister and one of the complainants Yashwant Sinha whose petition was dismissed asked: “How can the government anticipate whether or not the PAC will take up this report and redact portions?”

Sinha, who is a bitter critic of the Modi government, said it is the prerogative of the PAC to decide which report of the CAG is to be picked up for further checking. He said: “The Committee might not even touch this report. This is a clear case contempt of the PAC. How can the government write such a request to the Supreme Court anticipating that the PAC will act as per its wish?”

Advocate and activist Prashant Bhushan and one of the petitioners with Sinha and Arun Shourie whose petition was dismissed, said the government’s application indicated that it “is trying to paper over the embarrassment of the Supreme Court for writing a grotesquely incorrect judgment based on factually inaccurate submissions in the court.” He described the episode as a “gross miscarriage and violation of the principles of natural justice” and “completely contrary to settled principles of adjudication.”

To summarise, our view is that what the Modi government has apparently done is not just misled the Supreme Court but done so with impunity – first, by furnishing possibly unsigned notes in a sealed cover and then, by submitting an application that seeks to teach three judges (including the Chief Justice of India) basic English grammar. Should this be pardoned?

(Ravi Nair broke the story of the Rafale scam and is writing a book on the subject. Paranjoy Guha Thakurta is a senior journalist. The views expressed are personal.)