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Rafale Judgement Contains "Patent Factual & Legal Errors": Sinha, Shourie, Bhushan File Review Petition In SC [Read Petition]

Apoorva Mandhani
2 Jan 2019 4:00 AM GMT
Rafale Judgement Contains "Patent Factual & Legal Errors": Sinha, Shourie, Bhushan File Review Petition In SC [Read Petition]
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After dismissal of their petitions seeking an independent probe into the 2015 Rafale deal, former ministers Arun Shourie and Yashwant Sinha along with activist lawyer Prashant Bhushan have once again moved the ,Supreme Court seeking review of its December 14 judgment.

The petition inter alia points out the following errors apparent on the face of the record of the impugned judgment:

• It asserts that the prayer of the petitioners for registration of FIR and investigation by CBI was not dealt with and instead the contract was reviewed prematurely without the benefit of any investigation or inquiry into disputed questions of facts.

It contends, "That seeking directions to CBI to register an FIR on a complaint made and investigate the same in any contract (defence related or otherwise) is distinct from seeking judicial review by the Hon'ble Court of the contract itself…

"…In the instant case without any investigation by statutory authorities (as sought by the petitioner) or even by way of a commission, the Hon'ble Court has erred in prematurely reviewing the contract itself, without even affording an opportunity to the CBI to apprise the Hon'ble Court of the status of the complaint that was made by the petitioners and findings thereof."

• It alleges that the impugned judgment relies on facts that are "patently false". The allegation criticises the court for accepting a sealed cover note on the pricing of the deal.

It contends, "In the absence of any investigation by CBI and findings thereof, the Hon'ble Court erred in relying on the averments in the note (a secondary document) without even examining the primary documents leading to reliance on gross factual errors."

The petition further points out that while the court had taken note of a report of the Comptroller and Auditor General (CAG) on the pricing details, the CAG is yet to conclude its audit of the contract. Calling this a "substantial slip" and not an "accidental slip", the petition contends,

"The government has blatantly misled the Hon'ble Court and the Hon'ble Court has grossly erred in placing reliance on false averments in the note not even supported by an affidavit. The entire judgement is based on disputed questions of facts in respect of which an investigation needs to be done. As the judgement is based on evidently false averments in the note not shared with the petitioners, on that ground alone the entire judgement ought to be not just reviewed but recalled."

• The impugned judgment, it asserts, erroneously relies on facts in government's notes, that are contradicted by material on record that wasn't considered. This essentially pertained to the claims that the withdrawal of the RFP was initiated in March, 2015 and that the deal had run into rough weather on account of issues between HAL and Dassault.

• It also highlights several other errors in not considering material facts that raise pertinent issues such as: absence of sovereign guarantee by France in the Inter-Government Agreement even though Defence Procurement Procedures prescribed it, objections in Indian Negotiating Team (INT) to increase the benchmark price from 5.2 billion to 8.2 billion euros, and selection of Mr. Ambani's RAL as an offset partner.

• Furthermore, the petition goes on to highlight other facts on record that require consideration. For instance, the allegation that the then Defence Minister, Mr. Parrikar, was not officially consulted as regards the procurement for 36 aircrafts.

The petition also highlights the subsequent information that came to light, subsequent to the judgment being reserved on November 14. This included information regarding the strong objections within the INT, the political decision to waive off sovereign guarantee, and the decision to increase the benchmark price.

With such assertions, the petition contends that the impugned judgment contains "patent factual and legal errors", and demands a review of the judgment.

You may read: Rafale Verdict: Flawed, Confused & Contradictory by Manu Sebastian  

Read the Petition Here

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