Indira Jaising writes: After The Hindu report on PMO’s ‘parallel negotiations’ in Rafale deal, now what would we call a Supreme Court judgment ‘not based on facts’?

[dropcap]F[/dropcap]ROM the eye-popping report published in The Hindu, it is now clear that the PMO was, in fact, in "parallel negotiations" with the French government over the Rafale deal, and that Defence Ministry officials had raised strong objections to this, saying that it had "weakened the position of the MoD and the Indian Negotiating Team seriously". This note from the defence secretary was dated November 24, 2015.

Subsequently, the Government, via a news agency, has put out the fuller version of the note which indicates that the then Defence Minster, Manohar Parrikar, said this was an "overreaction" by MoD, and "it appears that PMO and French president's office are monitoring the progress of the issues, which was an outcome of the summit meeting…" This reaction of the Defence Minister came after more than a month of the November 24, 2015 note, and was written on January 11, 2016, after 43 days. It is pertinent to observe here that the then Defence Minister Parrikar had neither falsified, nor contested the content of the defence ministry official's note, but instead had suggested that the matter should be resolved "in consultation with the Pr Sec to P.M." [sic]

However, the words of the defence ministry officials now seem prophetic in hindsight and perhaps explain why the deal, announced by Prime Minister Narendra Modi himself in France on April 10, 2015, was eventually struck at the escalated price of 7.87 billion euro for 36 Rafale jets and that too without a sovereign guarantee, which was being insisted upon by the defence ministry officials as well as the Indian Negotiating Team.

But apart from the obvious implications of off-the-record "parallel negotiations" by the PMO, what does this mean for the Supreme Court judgment delivered on December 14, 2018, rejecting several petitions filed for a mandamus directing the CBI to lodge an FIR in relation to the deal?

We already have an appellation by the Government of India, by the mysterious A K Sharma alone (there is no affidavit by the person who created the note in sealed cover, which the Court is stated to have "misunderstood") calling for a "correction" of the Supreme Court judgment on the ground that there was no then existing report of the CAG on the Rafale deal and that the report will be sent to the CAG in future. This by itself would vitiate the judgment and render it liable to be set aside.

For reasons unknown, the application is not being taken up for hearing. We, therefore, do not know whether it was the Union Government that "misled" the Court, or whether the Court "misunderstood" the contents of the sealed cover.

Either way, considering that the judgment is based on a mistake of fact of a gross nature, on the question whether the Court ought to look into the pricing, the judgment is no judgment in the eye of law.

While the Court is entitled take a point of view on law which may be debatable, it is not at liberty to play fast and loose with the facts. For a Court of law, facts are sacred and not negotiable.

I have said elsewhere that a judgment based on facts which are false, is no judgment in the eye of law. The remedy is to recall the judgment and go for a fresh hearing, possibly by a different bench. The remedy is not a review of the judgment, much less an application for "correction" of the judgment, as is sought to be done by the Union Government.

This is perhaps the first time in Indian legal history that the Government has told the Court how to rewrite its own judgment, and which para to substitute for which one.

Now comes the news, with clear evidence in the form of the defence ministry note, that the procedure for negotiating the deal was not followed.

One of the fist issues framed by the Court, was the question whether procedures prescribed for negotiating the deal were followed. With regard to this, the Supreme Court in its December 14, 2018 order said:

"We have studied the material carefully.  We have also had the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court. We have been informed that joint exercises have taken place, and that there is a financial advantage to our nation. It cannot   be   lost   sight  of,  that   these   are contracts   of defence procurement which should be subject to a different degree and depth  of  judicial   review. Broadly, the   processes   have   been followed. The need for the aircrafts is not in doubt. The quality of the aircraft is not in question………".  

This clearly indicates that if procedures were followed, there would be no case for entertaining the petition any further. The converse is equally true — that if procedures were not followed, the court would entertain the petition and consider directing the CBI to register an FIR. Failure to follow procedure leads to a presumption that the decision-making process was vitiated by extraneous considerations.

Now we have evidence that the procedure was not followed.  This information was withheld from the Court. This could only have been a conscious decision, by the authors of the sealed cover, to conceal from the court the fact that the MoD had on record protested about "parallel negotiations" by the PMO.

There is now no doubt that this is a case for recall of the judgment and go for a de novo hearing.

While the Supreme Court has issued notice for contempt to advocate Prashant Bhushan for commenting on pending court proceedings in a tweet, today we are all pointing out that the Government concealed facts from the Court in the Rafale case, and that too in pending proceedings. This time, it is the Indian National Congress president Rahul Gandhi who is openly saying that it is the Union Government that lied to the court.

So, are we all guilty of contempt, or is there a public interest in freedom of speech in matters of national importance? We have a right to insist that court proceedings are not manipulated by the Government by presenting half-truths in sealed cover to the court.

The Supreme Court in a recent order directed that notice to be issued to the then interim director of the CBI, M Nageswara Rao, for transferring an investigating officer, despite a court order that he would not be transferred, in the Muzaffarpur shelter-home case.

The subversion of justice by the non-disclosure of facts by the Government of India in the Rafale case is far more gross, calling also for contempt of court action to be taken again the Government.

The question, however, is against whom? No government officer has signed the contents of the sealed cover; no law officer has signed the application for correction of the judgment. No one lied to court, no one misrepresented the record to the court.

In his last speech in Parliament in the Lok Sabha before the forthcoming elections, the PM said that the Rafale deal was legitimised by the Supreme Court of India. Indeed, it was. Will the Court now recall its judgment?

The biggest casualty of this entire episode is the credibility of the Supreme Court of India. It seems when the country is going through turbulent times, the Supreme Court also goes through turbulent times.

Where does that leave us? While talking to some police officers during the case relating to Alok Verma, the reaction I got was: "There was a time when we knew we could turn to the Supreme Court; now we know we cannot anymore, we will find ourselves surrendering to the Executive, or fighting each other in the manner in which the CBI tried to arrest the Kolkata Police Commissioner".

In the ultimate analysis, if the Supreme Court fails in its role of guardian of the Constitution, we will face mob rule and lawlessness.

I am reminded of the definition of "fake news": it is news not based on facts. What would you call a judgment "not based on facts"?

Also read: Best fiction writing in 2018: Award goes to the Supreme Court's Rafale judgement