The Rafale and Rahul case in SC explained

Vikash Aiyappa

New Delhi, Nov 14: The Supreme Court will deliver its verdict on a review petition in the Rafale case on Thursday.

A review petition had been filed challenging the clean chit given to the NDA government in the purchase of 36 fully loaded Rafale jets from France under the inter-governmental deal.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the apex court giving clean chit to the Rafale deal.

The background:

On December 14, 2018, the Supreme Court of India said it found no irregularities in the government's decision making process to procure the 36 Rafale jets from Dassault under the Indo-French intergovernmental agreement.

The court also observed that it is not its job to go into pricing when the need and quality of aircraft is not in doubt. Further the court also said it did not find anything wrong in the selection of the Indian offset partners by Dassault. All the pleas have been dismissed. The court also said that no further review is required, while also adding that no probe is required into the pricing aspect or decision making process for the purchase of the aircraft.

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What the petitioners had sought:

The court added that it did not find any instances of commercial favouritism. There is no occasion to doubt the decision making process in procurement of the aircraft. Minor variations in clauses should not amount to the setting aside of the contract, the Bench also said.

The Bench also observed that a country cannot be underprepared. It is not right for a court to sit as an appellant authority and scrutinise all aspects. The perception of individuals cannot be the basis of roving inquiry in sensitive issues such as defence procurements.

The Bench also said that it cannot compel a government to purchase 126 aircraft and it is not proper for the court to examine each aspect of this case. It is not the job of the court to compare pricing details, the Bench also said.

The court said that the personal perception of the people on the deal matters little. However the judiciary has constrained jurisdiction in examining defence deals of this nature especially when adversaries have inducted 4th and 5th generation fighters compared to none by India.

On the offset partner the Bench said that it is up to the vendor and not the central government to decide on the same. It is not for the court to step into what is appropriate. Mere press interviews cannot be the basis of the same. There is no commercial favouritism and hence there is no need to intervene.

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It is our considered view that in matters of contract there cannot be any uniform view of judicial review.

Scrutiny will have to be made keeping national security in mind. Our country cannot be allowed to be underprepared. It will not be correct for this court to sit and decide on the correctness. It was only after the statement made by former president of France, Fancois Hollande that the petitions were filed, the Bench also said.

The verdict was delivered by a Bench comprising Chief Justice of India, Ranjan Gogoi, Justices S K Kaul and K M Joseph.

The review:

Besides Shourie, Sinha and Bhushan, AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

On January 2, Sinha, Shourie and Bhushan had approached the court seeking review of the judgement, alleging that the court had relied upon "patently incorrect" claims made by the government in an unsigned note given in a sealed cover in the court.

The Centre had submitted that three privileged documents were unauthorisedly removed from the Defence Ministry and used by the petitioners to support their review petitions against the verdict which had dismissed all pleas challenging the procurement of the fighter jets.

The top court had rejected the objections raised by the Centre that those documents were not admissible as evidence under Section 123 of the Indian Evidence Act, and no one can produce them in court without the permission of the department concerned as they are also protected under the Official Secrets Act.

It had noted that all the three documents were in "public domain" and published by prominent daily The Hindu were "in consonance with the constitutional guarantee of freedom of speech".

It had said the documents used in the pleas were published in The Hindu' in February and one of the papers was also published by The Wire'.

The court had also noted that no law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to its notice.

The Rafale fighter is a twin-engine Medium Multi-Role Combat Aircraft manufactured by French aerospace company Dassault Aviation.

The Rahul contempt case:

The Supreme Court will deliver its verdict on a contempt petition filed against Rahul Gandhi on Thursday.

The criminal contempt was a petition filed by BJP MP Meenakshi Lekhi. The top court rejected the plea of Gandhi to close the criminal contempt petition filed by Lekhi.

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Rahul Gandhi had told the Supreme Court that he has already tendered an unconditional apology for wrongly attributing to it his "chowkidar chor hai" remark against Prime Minister Narendra Modi and the criminal contempt proceedings against him be closed.

A bench headed by Chief Justice Ranjan Gogoi reserved the verdict on the criminal contempt plea filed against Gandhi by BJP MP Meenakshi Lekhi.

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