Review Petition Against Rafale Decision Filed in SC

Just as the dust began to settle after the Rafale controversy, the matter has gone back to the Supreme Court in the form of a review petition. The 31-page petition filed today by Yashwant Sinha, Arun Shourie and Prashant Bhushan questions the impugned Judgement for not addressing one of the key prayers in their original petition, i.e. the Central Bureau of Investigation (CBI) register a First Information Report (FIR). The petitioners have raised questions regarding the veracity of the information supplied by the government in its ‘sealed cover’. New information regarding the Indian Negotiating Team’s (INT) objections has also been included for the Court to consider.

Errors Apparent on the Face of the Record

The petitioners have pointed out that the impugned Judgement relied on facts that were later found to be false. The main point here being the controversy over the report of the Comptroller and Auditor General of India (CAG). Following the Judgement, a political storm was kicked up due to paragraph 25 which stated that the CAG had prepared a report which was placed before the Public Accounts Committee (PAC), and a redacted portion of the report was in the public domain. Congress member of the Lok Sabha and head of the PAC refuted this portion, and publicly made it clear that he had never seen the report. The government then fell into damage control mode, and filed an application in the Court to rectify what it called a ‘clerical error’.

Also Read | Rafale Deal: Indian Negotiating Team was ‘Internally Divided’

The petitioners have stated that the error was not a clerical error or an accident. Their petition asserts: “The Hon’ble Court has applied its mind and erred in relying on a non-existent fact to render its judgement which is not a “accidental slip” but rather a substantial error.”

They further allege, “The government quite clearly misled the court. It is unknown as to what other false averments in the note the Hon’ble Court has relied upon.”

They have also attacked the government’s claim that a redacted portion of the CAG report will be placed in the public domain on the ground that the CAG is an independent Constitutional body, and does not answer to the government.

Also Read |Rafale Deal: National Security Cannot Prevent Pursuit of Truth

Regarding the ‘sealed cover’ which the Court had heavily relied on in its Judgement, the petitioners allege:

“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.”

One of the other errors that the petitioners pointed out was that the Reliance Industries of Mukesh Ambani had been confused with Reliance Infrastructure of Anil Ambani. Another was that the officers of the Air Force had not been questioned on the decision-making process, nor on the pricing. The petitioners allege that this was not the case. They claim that the Court had only questioned the officers on the needs of the Air Force and the utility of the aircraft.

Also Read |Why SC Order on Rafale and Government Application to Correct It Are Highly Flawed

Other Facts on Record that Require Consideration

The petitioners point out that the then Defence Minister Manohar Parrikar was never consulted on the change of the deal. The petitioners have mentioned two instances where he had stated that the decision was that of the prime minister, and that he only supported the decisions.

They also claim that privilege had never been invoked in previous weapons deals with Dassault Aviation and other companies. One example was a press release from 2012 about upgrading the Mirage fighters and procurement of air to air missiles. The value of all the contracts was mentioned as well as of the contract with Hindustan Aeronautics Limited (HAL).

The petitioners also raise questions over Anil Ambani’s Reliance group in the entire affair. They allege that in 2016, Reliance group paid 1.48 million Euros towards then French President, Francois Hollande’s partner’s film. They have also raised questions concerning Reliance Aerostructure Limited’s (RAL) legitimacy as an offset partner. They allege that RAL’s only asset was land, and that Anil Ambani’s earlier forays into defence-related manufacture led to insolvency proceedings.

Also Read | Rafale Judgement Raises Serious Questions

The petitioners raised questions over the new information learned after the Court had reserved its verdict on November 14. Some are based on articles published in Caravan regarding the objections raised by members of the INT with the pricing as well as the irregular procedure. Another source of new information that the petitioners relied on were the articles and interviews written and given by former Comptroller General of Defence Accounts Sudhanshu Mohanty. As well as the political decision to waive the sovereign guarantee and the raise the benchmark price.

Referring to the government’s application for modification as “an application for Review under disguise” The petitioners have requested that they be granted “an audience in Open Court before the present Petition is adjudicated upon.”