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Day 1 Review Arguments: 6 March 2019 (Morning)

On 26th February 2019, the Supreme Court admitted review petitions challenging its 2018 judgment. It decided to admit them in a hearing that happened behind closed doors in the Chief Justice's chambers. Today, the Supreme Court heard the review petitioners and respondents present oral arguments.

 

Background

On 14th December 2018, the Supreme Court delivered a judgment, wherein it held that the Rafale deal did not suffer from any major procedural irregularities. In particular, it held that it will not order a Court monitored investigation into the deal between the Indian and French Governments. The petitioners challenging the deal had called for an investigation of the Indian Government's purchase of 36 Rafale fighter jets from the French aviation manufacturer, Dassault Aviation.

 

The main review petition was filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan in January 2019. It argues that the December 2018 judgment is subject to review because it committed a series of errors apparent. Note that some of the errors referred to in the review petitions are obvious factual errors, such as:

  • The judgment falsely states that, at the time, the Comptroller and Auditor General (CAG) had already audited the contract and finalised a report.
  • The judgment confuses Mukesh Ambani's Reliance Industries with Anil Ambani's Reliance Infrastructure.

 

The Bench hearing the review petitions is the same Bench which delivered the judgment. It will decide whether the review petitions are maintainable, i.e. whether there exist sufficient grounds to review the judgment. It comprises Chief Justice R Gogoi, and Justices SK Kaul and KM Joseph.

 

Today's Hearing
At 11.32 AM the Bench assembled.

 

First, Manohar Lal Sharma submitted that the Court must have all the necessary facts and information. He emphasised that the report of the Comptroller and Auditor General (CAG) has not been revealed by the respondents (the State).

 

Next, Prashant Bhushan presented arguments. He began by stating the 4 broad grounds on which the review is being sought.

 

First Ground

Prashant Bhushan submitted that the judgment of the Court did not deal with the prayer in the petition filed by him. He had prayed for a court monitored investigation on criminal complaint under the the PC Act. He emphasised that the Court only dealt with the petitions by ML Sharma and V Dhanda, which had sought a cancellation of the deal.

[Note that Prashant Bhushan is referring not to the review petitions, but to the writ petitions in WP (Crl) 225/2018]

 

Prashant Bhushan emphasised that the only question before the Court in his petition was whether the complaint made to the Central Bureau of Investigation (CBI) alleges the omission of a cognizable offence. If it did, then a FIR ought to have been registered. Further, the petition sought interim relief: status report by the CBI.

 

Second and Third Grounds

Second, Prashant Bhushan submitted that the Court relied on a large number of serious factual errors. He notes these factual errors were presumably supplied to the court by the Centre in the sealed cover submissions.

 

Third, Prashant Bhushan argued that critical material facts were suppressed.

 

Prashant Bhushan argued that these two elements -- the reliance on factual errors and the suppression of facts -- combined to mislead the Court. He submitted that if the Court had been given complete and correct information, it would have reached a different conclusion.


In order to highlight that critical facts were suppressed from the Court, Prashant Bhushan began reading from an eight page note. The note contains "file notings" dated 24 November 2015, produced by 3 out of the 7 member negotiating team. It alleges that the Prime Minister's Office interfered with the Rafale negotiations. The note was published by The Hindu.

 

However, AG KK Venugopal objected. He submitted that the file notings were stolen from the Defence Ministry. He stated that they cannot be placed before the Court, as doing so would violate the Official Secrets Act, 1923 (OSA).

 

AG KK Venugopal submitted that not only does he object to the review petition, but further that the State is likely to initiate perjury proceedings against the journalists and petitioners, in view of the privileged information being made public.

 

Prashant Bhushan submitted that the Right to Information Act, 2005 (RTI) overrides the Official Secrets Act. He argued that the petitioners are not violating the law.

 

Fourth Ground

Finally, Prashant Bhushan submitted that the Court failed to consider critical facts supplied by the petitioners.

 

The Court rose for lunch at 01.00 PM. The Bench re-assembled after 02.00 PM.

(Court reporting by Disha Chaudhry and Jai Brunner)