SC Reserves Verdict In Rafale Review & Contempt Petition Against Rahul Gandhi

The Supreme Court today reserved verdict in the petition seeking review of the December 14 judgment which had declined to order probe into the alleged corruption in the deal to procure 36 Rafale aircraft from French company Dassault aviation.An application filed by the review petitioners seeking perjury proceedings against government officials who had allegedly suppressed information from Court was also considered along with the review.Also, the Court reserved verdict in the contempt petition filed by BJP leader Meenakshi Lekhi against Congress President Rahul Gandhi for remarking that Supreme Court had found "chowkidar chor hain" in its April 10 verdict in Rafale preliminary objections.ArgumentsPrashant Bhushan, one of the petitioners, said that there were two grounds for review:-That the December 14 judgment proceeded on the wrong basis that the petitioners were seeking cancellation of the deal, failing to consider that the petitioners were actually praying for a court monitored probe into the corruption in it.That the judgment is based on incorrect and incomplete facts supplied by the Government.Bhushan referred to a document purported to be a note from the Ministry of Defence regarding "eight last minute changes" that were approved by the Defence Acquisition Council. Based on this document, he said that Cabinet Committee on Security met in September 2016 to drop standard clauses in the deal pertaining to use of undue influence, agents/agency commission and access to books of accounts of industrial suppliers, which are usually included in procurement deals to ensure transparency and probity. The fact that standard anti-corruption clauses have been unusually dropped from the agreement by itself points to the need for criminal investigation, he argued. Even the latest reply filed by the Govt is silent on why the standard anti-corruption clauses were dropped from the agreement. Bhushan next said that the Government has not supplied full information regarding decision making process. He highlighted the dissent of three members out of the 7 member Indian Negotiating Team, whereby they had flagged the issue of inflated benchmark price. The benchmark price was fixed at 5 billion euros; but in the final deal the price increased by 55.6% above the benchmark. The sovereign guarantee clause was dropped despite objections from the members of INT. The deal was finalised with a letter of comfort from the France, which is as good as no guarantee.Centre's failure to inform the court about the INT members' dissent is by itself a ground for reviewing the judgment. He also pointed out that the Government had not initially revealed to the Court that the Prime Minister's Office was involved in the negotiation process. Though in the affidavit subsequently filed, the Government has sought to underplay it as a "monitoring by PMO", it was actually a "parallel negotiation", which weakened India's bargaining power considerably, and undermined the advantageous position, argued Bhushan.He also submitted that around the time of the deal, Anil Ambani had met the French defence minister, and had produced a film for his wife; Ambani was also given a huge tax exemption. All these aspects require a probe to see if there was any quid pro quo in the offset partner selection, argued Bhushan. These facts have not been disclosed to the Court. Concealment of crucial information amounts to fraud : Bhushan @pbhushan1 #Rafale #RafaleReview— Live Law (@LiveLawIndia) May 10, 2019Arun Shourie argued the perjury application and said that "each of the errors in the judgment can be traced to the false submissions made by the Government".The Attorney General countered by saying that the petitioners were in effect repeating their arguments in the writ petition, which is impermissible in a review. The AG cautioned the Court that it was a defence deal, which cannot be easily subjected to judicial review."So far as the price is concerned, it is covered Article 10 of the inter-government agreement. Pricing under Article 10 was not supposed to be discussed in public domain", AG said.When Justice K M Joseph asked why no action was taken as per the Lalithakumari decision on the petitioners' complaint, the AG replied that no prima facie case was made out.Justice Joseph further quizzed AG about lack of transfer of technology in Rafale deal unlike previous deals. AG replied that Court cannot decide technical aspects of the deal.On the bench probing about the waiver of sovereign guarantee, the AG said that it was not an unprecedented practise and cited the examples of Inter Governmental Agreements with Russia and USA without sovereign guarantee."It is a question of national security. No other court in the world will examine a defence deal on these kinds of arguments", AG asserted.Contempt against Rahul GandhiAfter the arguments in review petition were over, the Court took up the contempt plea against Rahul Gandhi.Senior Advocate Mukul Rohatgi argued that the...

SC Reserves Verdict In Rafale Review & Contempt Petition Against Rahul Gandhi

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