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The Rafael deal, the Supreme Court judgement and common sense
I'm not a pundit, an expert or a connoisseur of law and most of my observations are usually based upon 'common sense' that is no longer common nor makes sense these days.

However, a layman like this scribe has no other option available to express his thoughts except the peroration. I know that Supreme Court's judgment is supreme but it is perfectly alright to say that the court gave a bad judgement in a case. It is not alright to say things like the judges of the court are intellectually incapable of appreciating good arguments. Wherever criticism is couched in language which may lower the dignity of the court in the public eye, Contempt of Court is committed. 

However, great judges have said that the contempt jurisdiction should only be exercised in situations when the courts are disobeyed and not adhered to, and should not be exercised to stifle criticism. In PN Duda v/s P Shiv Shanker [1988 (3) SCC 167] the court had held that administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e, to defend and uphold the Constitution and the laws without fear and favour. The judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.

In context of the Rafael deal litigation, here are the top observations made by the Supreme Court while rejecting a batch of petitions that challenged the deal:

No irregularities found in the government's decision making process to procure the 36 Rafale jets from Dassault under the Indo-French intergovernmental agreement.

It is not the job of the court to go into the pricing when the need and quality of aircraft is not in doubt.

We did not find anything wrong in the selection of the Indian offset partners by Dassault.

No probe is required into the pricing aspect or decision making process for the purchase of the aircraft.

We do not find instances of commercial favouritism, no irregularities, no commercial favouritism found.

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.

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.

We 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. Personal perception of the people on the deal matters little.

The first reservation about the judgment was obviously raised by Arun Shouri and Shashi Bhusan. And the senior Congress party leader and opposition leader in Lok Sabha, Mallikarjun Kharge said that the party's demand for a JPC probe still stands as the main contentious issue was pricing, which SC said it did not want to comment on as it is not in its jurisdiction. The Congress leader also alleged that the government gave "one-sided half-baked information to the Supreme Court which has not been scrutinised by anyone".

That the government led by the BJP has misled the Supreme Court by stating that the pricing of Rafale deal has already by been examined by the Comptroller and Auditor General (CAG) and the Public Accounts Committee (PAC) is a charge that is going to stick no matter what follows. The Union government has stated that it never misled the Supreme Court on the CAG report issue and that there was only a "typing error" which the government counsel has flagged with a plea for correction.

A senior government source said, "This clearly seems to be a typing error in the order which is not an uncommon thing. Errors do happen and once a mention is made, the courts do fix them. To emphasise that the "error was in the judgment not in the submissions" the defence ministry today approached the Supreme Court seeking a correction. The Union of India is moving this application seeking a correction with regard to two sentences in paragraph 25 of the judgment delivered by the court on Friday (December 14). The error in these two sentences, as explained hereinafter, appears to have occurred perhaps on account of a misinterpretation of a couple of sentences in a note handed over to the court in a sealed cover."

In its documents, the government had stated in the court:

That the issue of "pricing" is dealt with in paragraphs 24 to 26 of the judgment. In regard to the pricing details being placed before the Comptroller and Auditor General (CAG), the Public Accounts Committee (PAC) and Parliament, the following statements have been made in paragraph 25 of the judgment:

"The pricing details have, however, been shared with Comptroller and Auditor General [hereinafter referred to as "CAG"], and the report of the CAG has been examined by the Public Accounts Committee [hereinafter referred to as "PAC"]. Only a redacted portion of the report was placed before the Parliament and is in public domain."

That these statements appear to have been based on the note submitted by the Union of India, along with the pricing details, in two sealed covers. These sealed covers were submitted to this Hon'ble Court in compliance with the order dated 31.10.2018, which had directed, inter alia, that the "Court would also like to be apprised of the details with regard to the pricing/cost, particularly the advantage thereof, if any, which again will be submitted to the Court in a sealed cover".

The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain.

Any takers????????????????

That it would be noted that what has already been done is described by words in the past tense, i.e. the Government "has already shared" the price details with the CAG. This is in the past tense and is factually correct. The second part of the sentence, in regard to the PAC, is to the effect that "the report of the CAG is examined by the PAC.

The petitioners and opposition attacked the order with lawyer Prashant Bhushan saying that the verdict has "some grotesque factual errors", including "a CAG report on Rafale deal placed before the Public Accounts Committee of Parliament" which examines all CAG reports.

At the heart of the uproar is the Point 25 on page 21 of the Supreme Court order. It says, "The pricing details [of Rafale deal] have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as 'CAG'), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as 'PAC'). Only a redacted portion of the report was placed before the Parliament, and is in public domain."

The Opposition has picked this point and gone on the warpath to call the order "flawed" and blamed the government for misleading the court to believe that the pricing question has already been examined by the CAG and even has been examined by the PAC.

PAC Chairman Mallikarjun Kharge said on Friday that the committee never received any report by the CAG on Rafale deal and there is no question of it having discussed the report. He added, "Where is this report of the CAG? Show it to us if it exists. I spoke to the office of the CAG, which confirmed that its report on the Rafale deal is not yet ready." Later on Saturday, to mount the offensive, Kharge summoned the government counsel and the Comptroller and Auditor General to depose before the PAC and clarify. Now, there is long battle, legal as well as perception, is looming large before the general elections. I can't prophecy how the wind would blow. However, I feel strongly uncomfortably about the 'Seal Cover Envelope' mode of tradition.

Seal cover limits the knowledge of the argument for the opponent. As a citizen of a democratic country,  it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done as observed Viscount Gordon Hewart, the Lord Chief Justice of England and Wales, some 83 years ago.

A moot question is - why the contents of a sealed envelope should be considered confidential in the ongoing case being heard by the Supreme Court of India? The only reasons could be that the contents of the sealed envelope are not hard evidence or that they are too sensitive. If the contents of the sealed envelope are not hard evidence, then how much credence should be given to it since those involved are prone to making wild allegations when it comes help in retaining or capturing power in the next general election?

Take the other proposition that the contents of the sealed envelope are too sensitive to be made public. But it could have been available under the oath of secrecy to the opponents before the decision is made.

Let me come back to common sense again. Common sense is a basic ability to perceive, understand and judge things, which is shared by ("common to") nearly all people, and can be reasonably expected of nearly all people without any need for debate.

The Congress party or Rahul Gandhi has not filed the case and they have no argument here. They will fight it in public and in Parliament.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of In case you have a opposing view, please click here to share the same in the comments section.
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