Rafale deal: Supreme Court clean chit to Modi govt for second time

The Supreme Court Thursday gave clean chit to the Modi government on the purchase of 36 fully loaded Rafale fighter jets from French company Dassault Aviation, rejecting the plea for registration of an FIR by the CBI for alleged commission of cognisable offence in the deal.

The apex court in two separate but concurring verdicts said the review petitions were without merit and required to be dismissed.

The top court rejected the pleas seeking review of the December 14, 2018 verdict in which it had said that there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets.

It was not satisfied with the submission that it decided the disputed questions of facts in the Rs 58,000 crore deal “prematurely” without investigation.

The court said it had examined the three aspects (pricing, decision making process, offsets) on merits and did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR.

The rejection of the review petitions is tantamount to the apex court giving the clean chit to the Narendra Modi government for the second time.

Chief Justice Ranjan Gogoi and Justice S K Kaul, who were part of the three-judge bench, said: “There was no ground made out for initiating prosecution under section 340 of CrPC.

“We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.”

Justice K M Joseph in his separate but concurring findings held that the December 14, 2018 would not come in the way of the CBI from acting on the complaint, made by former Union ministers Yashwant Sinha, Arun Shourie and activist advocate Prashant Bhushan, seeking lodging of an FIR.

“It is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent (CBI) in…from taking action on…complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act,” Justice Joseph said.

CJI Ranjan Gogoi and Justice S K Kaul said that the court cannot lose sight of the fact that “we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute”.

Dealing with the registration of FIR aspect, they said: “No doubt that there was a prayer made for registration of FIR and further investigation but then once we had examined the three aspects (pricing, Decision Making Process, Offsets) on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.”

The two judges, in their 16-page separate verdict, dealt with the issue of pricing of Rafale fighter deal and said it is satisfied with the material made available.

“It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court,” they said.

The CJI and Justice Kaul said that on perusal of documents on pricing issue, the court had found that “one cannot compare apples with oranges” and the internal mechanism of such pricing would take care of the situation.

“Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities,” the two-judges said.

On the decision making process, they said, “We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it”.

Justice Kaul, who wrote the judgement for himself and the CJI, said: “It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with.

“It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process.”

With regard to another controversial issue of Indian offset partner for Rafale fighter deal, the two-judges dealt with the averment that court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother.

“That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it,” the two-judge said in their verdict.

Documents related to Rafale case deal stolen from Defence Ministry

 The government Wednesday told the Supreme Court that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry and threatened The Hindu newspaper with the Official Secrets Act for publishing articles based on them.

Those who put documents on the Rafale deal in the public domain are guilty under the Act as also contempt of court, Attorney General K K Venugopal said before a three-judge bench headed by Chief Justice Ranjan Gogoi.

While publishing articles based on stolen documents amounts to violation of the Official Secrets Act, entailing maximum punishment of up to 14 years, the contempt law attracts six months jail as also a fine of Rs 2,000.

Unruffled by the Centre’s stand, Hindu publishing group Chairman N Ram said nobody would get any information from the newspaper on the confidential sources who provided the documents.

Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up.

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves,” Ram told PTI.

An investigation into the theft is on, the attorney general said on a day the newspaper published another article on the fighter jet deal.

The bench, also including Justices S K Kaul and K M Joseph, was hearing a batch of petitions seeking a review of its December 14 verdict dismissing all the pleas against the deal procured by India from France.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed the petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of PILs.

When Bhushan referred to an articles written by Ram, Venugopal said the write-ups were based on stolen documents.

An FIR has not been registered so far into the theft of documents, he said.

The first write-up appeared on February 8 and Wednesday’s edition had another article aimed at influencing the court’s proceedings which amounted to contempt of court, he said.

The newspaper published the documents by omitting the word ‘secret’ on top, he said, seeking a dismissal of the review petitions and raising objections to Bhushan’s arguments based on the articles.

The bench sought to know from the Centre as to what it has done when it alleges that the stories are based on stolen material.

On behalf of Sinha, Shourie and himself, Bhushan said the top court would not have dismissed the plea for an FIR and the probe, had critical facts not been suppressed.

Venugopal said the documents relied upon by Bhushan were stolen from the Defence Ministry and an investigation into the matter was underway.

The CJI said hearing Bhushan did not mean the top court was taking on record the documents on the Rafale deal. Justice Gogoi also asked Venugopal to tell the court what action had been taken on theft of documents on the aircraft deal.

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act.

He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

Referring to the aerial combat with Pakistan last week, he said the country needs the Rafale jet to defend itself “from F-16 fighter planes that recently bombed us”.

“Without Rafale how can we resist them,” he said, adding that two squadrons of Rafale fighter jets are coming to India in flyaway condition and the first one will be in by September.

He also said that although MIG 21 of 1960s performed beautifully against F16, Rafale fighter jets were needed.

The Bench, which will hear the review petitions further on March 14, was told by Venugopal that every statement of the apex court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

The high voltage hearing saw the bench showering several tricky questions to the AG who was buttressing that the stolen materials cannot be relied to revisit the judgement dismissing the pleas and it was necessary to determine the sources who provided the sensitive documents.

The bench asked Venugopal “if an act of corruption is committed in Rafale deal, will govt take shelter behind Official Secrets Act? I (CJI) am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

It further said it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

Opposing the plea for CBI inquiry into the Rafale deal, Venugopal said any order to the effect would be damaging to the country as the recent incidents have shown how vulnerable is the scenario in which the country was trying to meet its defence requirements.

However, the bench said the issue of national security did not arise in the case as allegations were of grave crime of corruption.

The Attorney General went ahead with his submissions and said “certain issues are outside the purview of judicial review.

“Do we have to come to the court to justify when we declare war, when we declare peace? Do we have to come and seek permission of the court every time,?” he asserted.

1984 anti-Sikh riots: SC notice to CBI on Sajjan Kumar’s appeal

The Supreme Court on Monday issued notice to the CBI on former Congress leader Sajjan Kumar’s appeal against his conviction in a 1984 anti-Sikh riots case.

A bench comprising Chief Justice Ranjan Gogoi and Justices Ashok Bhushan and S K Kaul also issued notice on Kumar’s bail plea

Kumar, 73, surrendered before a trial court here on December 31, 2018 to serve his sentence in accordance with the Delhi High Court’s December 17 judgement, which convicted and sent him to prison for the “remainder of his natural life”.

The case in which Kumar was convicted and sentenced relates to the killing of five Sikhs in Delhi Cantonment’s Raj Nagar Part-I area of southwest Delhi on November 1-2, 1984 and the burning down of a gurudwara

The riots broke out after the assassination of then prime minister Indira Gandhi on October 31, 1984, by her two Sikh bodyguards.

Kumar resigned from the Congress after his conviction in the case

The high court found Kumar guilty of criminal conspiracy and abetment in commission of crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony and defiling and destruction of a gurudwara

It also upheld the conviction and varying sentences awarded by a trial court to five others — former Congress councillor Balwan Khokhar, retired naval officer Captain Bhagmal, Girdhari Lal and former MLAs Mahender Yadav and Kishan Khokhar

In its judgment, the high court noted that over 2,700 Sikhs were killed in the national capital during the 1984 riots, which it described as a “carnage of unbelievable proportions”

It said the riots were a “crime against humanity” perpetrated by those who enjoyed “political patronage” and aided by an “indifferent” law enforcement agency

The high court set aside the trial court’s 2010 verdict, which had acquitted Kumar in the case.