A three-judge Bench of the Supreme Court, led by Chief Justice of India (CJI) Ranjan Gogoi, on Thursday dismissed petitions seeking a review of the December 14, 2018 judgment upholding the purchase of .
“The endeavour of the petitioners was to construe themselves as an appellate authority to determine each aspect of the Rafale purchase… We cannot lose sight of the fact that we are dealing with a contract for aircraft pending before different governments for quite some time. The necessity for those aircraft has never been in dispute... This court did not consider it appropriate to embark on a roving and fishing enquiry,” Justice Sanjay Kishan Kaul delivered the main judgment he co-authored with the CJI on Thursday.
The Bench also closed a criminal contempt petition filed by BJP leader Meenakshi Lekhi against Congress MP Rahul Gandhi for wrongly attributing the phrase chowkidar chor hai to the court. It said Mr. Gandhi's statement was “unfortunate”. A political leader of his stature should be “more careful in the future”. It wondered whether Mr. Gandhi had even perused its order before making the statement. Mr. Gandhi had apologised to the court.
“We do believe that persons holding such important positions in the political spectrum must be more careful. As to what should be his campaign line is for a political person to consider. However, this court or for that matter no court should be dragged into this political discourse valid or invalid, while attributing aspects to the court which had never been held by the court. Certainly, Mr. Gandhi needs to be more careful in future,” Justice Kaul read out an excerpt from the main opinion.
Justice Kaul said the issues of registering an FIR and a consequent probe by the CBI were decided on merits by the court in the December last judgment. There was no need to reopen them.
The review petitioners, who include former Union Ministers Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan, had alleged that the government concealed crucial facts and misled the apex court into giving a favourable verdict. They had sought the registration of an FIR and a CBI probe into their complaint against the Rafale purchase.
Justice K.M. Joseph, the third judge on the Bench, agreed with the conclusions arrived in the main opinion of the Bench but suggested that the CBI should take prior sanction and register an FIR in case it found any material in the former Ministers' complaint.
The court allowed the government’s application for correction of certain factual portions of the December last judgment. The main opinion said these mistakes only pertained to the narration of facts and did not affect the rationale of the judgment.
The two judges said the 2018 judgment merely misconstrued between “what has been and what was to be done”. The verdict had misinterpreted facts on whether the government had shared the price details with the Comptroller and Auditor General (CAG). Secondly, it had conveyed the notion that the CAG report on the Rafale purchase was already before Public Accounts Committee of Parliament, when it was not. Thirdly, the government had claimed that a redacted portion of the report was placed before Parliament and was in public domain.
Pricing issue
The court rejected the allegations on the pricing of the jets. It said it was not the function of the court to determine the prices. Such sensitive matters could not be dealt with on the mere suspicions of petitioners. Internal mechanism of such pricing would take care of the situation.
Comparing the price of bare aircraft and fully-loaded aircraft was like comparing apples and oranges. “Best leave pricing to the competent authorities,” the judges advised the petitioners.
The court noted how the review petitioners claimed they had got more information from “sources” about the Rafale deal after the court decision in December. In March, the court, in an order, agreed to examine various documents published in The Hindu to decide the veracity of the allegations against the Rafale purchase.
“We decline to, once again, to embark on an elaborate exercise of analysing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters,” the court rejected the plea for a relook on the basis of fresh information.
On the aspect that it had misconstrued Anil Ambani’s company as that of his elder brother Mukesh, the court said the term ‘Reliance Industries’ was used in a generic sense while discussing allegations regarding the offset partner in the Rafale deal.
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