Review Judgment in Plain EnglishRafale Fighter Jet Deal
Judgment in Plain English
On November 14th 2019, a Bench comprising Ranjan Gogoi CJI, S.K. Kaul and K.M. Joseph JJ dismissed the review petitions challenging the Supreme Court’s 2018 Rafale judgment. It decided against directing a court-monitored investigation of the Union’s purchase of 36 Rafale fighter aircrafts.
In March 2015, Prime Minister Narendra Modi announced an inter-government deal for the purchase of 36 Rafale fighter aircrafts, from the French private aircraft-manufacturer Dassault. In doing so, he set aside the previous deal for the purchase of 126 Rafale fighter aircraft. In the new deal, Anil Ambani’s Reliance Aerostructure Limited was selected as the Indian Offset Partner (IOP)
Various litigants filed petitions under Article 32 of the Constitution challenging the deal on the ground that it suffered from various irregularities. Primarily, these alleged irregularities had to do with the (i) irregularities in the decision making process, (ii) price variation between the first and second deal and (iii) the selection of the IOP.
On December 14th 2018, the Supreme Court delivered its judgment and held that the deal did not suffer from any apparent irregularities. It dismissed the prayer for ordering the CBI to file an FIR and conduct an investigation of the deal. It emphasised that it had a limited degree of judicial scrutiny over defence contracts.
Three review petitions were filed challenging the judgment. The primary review petition was filed by Prashant Bhushan, Yashwant Sinha and Arun Shourie. They prayed for the Court to recall its earlier judgment, claiming that it suffered from ‘errors apparent on the face of the record’, such as:
- Judgment did not deal with the main prayer of one of the petitioners (Prashant Bhushan): filing of an FIR and a CBI led investigation
- Judgment relied on a large number of factual errors
- Critical material evidence was suppressed from the Court
- Judgment did not consider critical facts submitted by the petitions
Review petitions dismissed
On November 14th 2019, the Supreme Court dismissed the review petitions. S.K. Kaul J authored the majority opinion on behalf of himself and Gogoi CJI. K.M. Joseph J wrote a concurring opinion. Both judgments emphasised that the Court exercises limited judicial scrutiny under Article 32 of the Constitution over defence contracts.
No substantial ‘errors apparent’
The Court held that it had not committed any substantial errors, which would necessitate it recalling its earlier judgment. It did not go into every alleged ‘error apparent’ referred to by the review petitioners and focused on those which it found to be the most substantial.
First, the Court dismissed the plea that it had not taken into consideration Prashant Bhushan’s main prayer during the original proceedings. Mr. Bhushan had prayed for a direction ordering the CBI to file an FIR and conduct an investigation. It observed that it had allowed all counsels to present ‘elaborate submissions’ (pg. 8).
The Court conceded that it had made a factual error in its judgment regarding the Comptroller and Auditor General (CAG)’s report, but did not find that it had been misled by the Union. The error pertained to whether the Public Accounts Committee (PAC) had reviewed the CAG’s audit of pricing details, prior to the Court’s judgment. The Union had confidentially submitted to the Court the following: ‘The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC’ (pg. 3). The Court interpreted the second sentence to mean that the PAC had already examined the CAG’s report on pricing details, prior to the Court’s judgment. However, after the judgment was delivered, the Union filed an application to clarify what it had meant. It clarified that the sentence reflected a general observation, namely that the PAC examines CAG reports in ‘the usual course of business’ (pg. 4). The Court accepted this clarification and modified its judgment to reflect the same. It did not find this was a ground to recall the judgment.
The Court rejected the claim that the deal’s decision-making process suffered from substantial irregularities. It did not find that the errors pointed out by the review petitioners warranted an investigation of the decision-making process. It re-emphasised that it has limited jurisdiction to review defence contracts. Further, it observed that the new information revealing the Indian Negotiation Team’s objections to the new benchmark price of aircrafts, merely illustrated a difference of opinion, not an irregularity (pg. 9-10).
The Court agreed that it had confused Anil Ambani’s Reliance Industries with Mukesh Ambani’s Reliance Infrastructure. However, it observed that this mistake was inconsequential, maintaining that there was no substantial evidence to suggest that the Union had engaged in commercial favouritism. It reiterated that it is the vendor, in this case Dassault, not the Government which selects the IOP. It said that it would not scrutinise Dassault’s choice of an IOP (pg. 11, 79).
In regards Lalita Kumari: cannot order CBI to conduct an investigation
K.M. Joseph J addressed the plea by the review petitioners that the 2018 judgment violated the precedent set by the Constitution Bench in Lalita Kumari (2014 2 SCC 1). In Lalita Kumari, the Supreme Court had held that a police officer is bound to register an FIR, if they receive information of a ‘cognisable offence’, without first conducting a ‘preliminary inquiry’ to test the veracity of information received (pg. 73-74). The review petitioners contended that the judgment failed to consider this precedent established by Lalita Kumari. The precedent has a direct bearing on the prayer for the CBI to file an FIR.
K.M. Joseph J held that the 2018 judgment did not violate the precedent set by Kumari. He held that as the cognisable offence in question pertained to the alleged corruption of a public servant, a preliminary inquiry must be conducted prior to a FIR being registered. He observed that Lalita Kumari held that certain types of offences necessitate a preliminary inquiry prior to FIR registration, including those pertaining to corruption. Therefore, he concluded that the prayer for the registration of a FIR could not be granted (pg.91-102).
Further, K.M. Joseph J addressed the concern that the 2018 judgment could have granted a ‘smaller relief than sought. In other words, why did the judgment not direct the CBI to conduct a preliminary inquiry? Justice K.M. Joseph resorted to Section 17A of the Prevention Corruption Act, 1988. Section 17A requires police officers to receive prior approval before conducting a preliminary inquiry or investigation of a public servant. In particular, the officer must receive approval from the authority competent to remove the public servant (pg. 103-104). Given that no such prior approval had been granted, K.M. Joseph J concluded that no preliminary inquiry could take place.
However, K.M. Joseph J emphasised that nothing prevented the CBI from seeking the necessary approval to conduct a preliminary inquiry, under Section 17A of the Prevention of Corruption Act. He observed that the CBI, unlike the Court, did not have a limited jurisdiction with regards to defence contracts. Thereby, he left the window open for an investigation of the Rafale deal by the CBI.
Scope of review powers
K.M. Joseph J went into some detail to clarify the nature of the Supreme Court’s review powers under Article 137 of the Constitution. Referring to case-law, he elaborated on what are common grounds for review and, further, the distinction between civil and criminal review proceedings.
Order XLVII of the Supreme Court Rules, 2013 addresses what constitutes a grounds for review. For civil proceedings, any of the following could necessitate a review of an earlier judgment: discovery of new evidence, error apparent on the face of the record, or ‘any other sufficient reason’. For criminal proceedings, the Rules say that only an error apparent on the face of the record is a ground for review. This would suggest that the grounds for review in a criminal matter are more restricted than they are in civil proceedings.
However, K.M. Joseph J observed that the Court’s power to review judgments in criminal proceedings is as wide as it is in civil proceedings. He observed that Article 137 makes no distinction between civil and criminal proceedings. Relying on P.N. Eswara Iyer (1980 4 SCC 680), he said that the framers of the Supreme Court Rules did not intend to restrict the Court’s power of judicial review in criminal proceedings (pg. 37-38). He asserted that judicial review is in place to correct for judicial error, regardless of the type of proceeding.
Finally, Joseph J emphasised that the Court’s powers of review cannot be confused with its appellate power. Referring to Shin Satellite Public Co. Ltd. (2006 2 SCC 628), Kamal Sengupta (2008 8 SCC 612) and Kamlesh Verma (2013 8 SCC 320), he stressed that review proceedings could not entail a full rehearing of the original matter. Further, he observed that the mere discovery of new important evidence or presence of factual errors in the judgment, are not necessarily sufficient grounds for review.
S.K. Kaul J dismissed the Rahul Gandhi contempt petition. On April 10th 2019, Rahul Gandhi allegedly said that the Supreme Court had held ‘chowkidar chor hai’, insinuating that the Court was calling Prime Minister Modi a thief. The comment was in reference to the Court’s April 10th 2019 judgment, wherein it held that leaked Rafale documents published by the press were admissible. S.K. Kaul J took into account Rahul Gandhi’s affidavit, in which he apologised for the attribution, and decided against holding Mr. Gandhi in contempt of court. However, he issued Mr. Gandhi with ‘a word of caution…to be more careful in the future’ (pg. 12-16).