Modi Govt Unsettled by Rafale Review? 5 Takeaways From SC Hearing

Rafale leaks are genuine, the Centre misled the court, A-G KK Venugopal may have committed contempt, and more.

(This story was first published on 6 March 2019, then updated on 14 March, and is now being republished in light of the Supreme Court’s imminent order on 10 April on whether or not to admit certain ‘confidential’ documents as evidence when conducting the review in the Rafale case.)

Wednesday, 6 March, saw a fractious hearing in the Supreme Court on the Rafale review petitions. The day was supposed to see arguments by petitioners, including Prashant Bhushan, Arun Shourie and Yashwant Sinha, on why there were “patent factual and legal errors” in the apex court’s December judgment on the Rafale deal.

Bhushan managed to get his first argument in: that the judges hadn’t considered the main request by him, Shourie and Sinha, for the court to direct a CBI investigation into the case. According to him, this meant the judgment was liable to review since it needed to consider this argument.

But when he started his second argument, that the central government had misled the court and suppressed material information from the judges, the hearing went down a totally unforeseen path.

Bhushan was trying to use documents that have come to light after the SC’s judgment, in articles by The Hindu, The Caravan and others, to show that important information was not provided to the court by the government, which had submitted details of the procedure for the deal and its pricing in a “sealed cover”. This is also the basis for a perjury application by them against the Centre.

It was at this point that things got heated.

Attorney-General KK Venugopal objected to this on the grounds that the documents had been “stolen” from the Defence Ministry, and that because the review petitions and perjury application relied on such illegally obtained evidence, they needed to be dismissed.

On top of this, he also said the documents were top secret, and therefore, publishing them and using them in court was a violation of the Official Secrets Act. As a result, he said the government was considering prosecuting the newspapers and the petitioners for breaking the law.

You can read all the details of what happened in court here.

But what does this all mean? Is the information in those documents true or false? Why is the government threatening to file criminal cases against journalists who are revealing gross irregularities, maybe even illegalities? Can the courts not look at clinching evidence just because it has been obtained through leaks?

Here are the key takeaways from the hearing:

1. The Documents are Genuine

At no point in the proceedings did Attorney-General KK Venugopal contest the validity of the information in the various documents that have come to light thanks to N Ram’s exposes and the other articles. In fact, by terming the documents as “stolen”, he confirmed that the documents actually came from the Defence Ministry, and are not fabricated.

This is a major development, since, among other things it means that:

• Defence Ministry officials did consider the Prime Minister’s Office to be interfering in the deal and compromising the negotiating team’s position.
• The PMO did decide to drop the sovereign and bank guarantee requirements months before the meeting of the Cabinet Committee on Security (CCS) where this was supposed to have been decided.
• The government did agree to get rid of the anti-corruption clause and other provisions after the deal was approved by the CCS in August 2016.
• Members of the negotiating team did raise a number of objections, including on benchmark pricing, Dassault’s ability to deliver the aircraft, and the need for a sovereign guarantee – objections that were not properly resolved.

2. The Supreme Court Didn’t Get All Relevant Information From Govt

The consequences of the documents being genuine are far-reaching, because the information in them does not appear to have been given to the Supreme Court by the Centre.

The dropping of anti-corruption clauses from the agreement in September 2016, after the deal had been approved by the CCS in August 2016 is a particularly serious issue, since this would be a flagrant violation of the Defence Procurement Procedure – which the judges had found to be “broadly followed”.

Similarly, the description of the procedure in the SC’s December judgment says that it was the seven-member ‘Indian Negotiating Team’ (INT) which negotiated the commercial aspects of the deal, which was finalised in July 2016 and sent to the CCS. The CCS was then supposed to have agreed to drop the sovereign guarantee requirement in August 2016. There is no mention of the PMO playing a part in this.

However, the Defence Ministry’s note on PMO interference clearly shows that the decision to drop the guarantees was made by PMO officials with their French counterparts. Even Air Marshal SBP Sinha, who tried to defend the PMO, acknowledges this happened in November 2015.

All this information was relevant to the judges’ assessment of whether procedure was correctly followed, and so, it’s a problem for the Centre that it didn’t provide this information to the court.

3. The Modi Government is Unsettled by the Leaks and Review Petitions

Despite the problems, it would have been quite simple for the Centre to just argue that this information wasn’t relevant, or that the reporting on it ignores relevant context, or that the documents are being misrepresented in the articles and in court.

Instead, the government has tried to make sure they are not considered as relevant evidence, and have threatened to prosecute journalists for publishing the documents, and the petitioners for just submitting them to the court.

This is a ham-fisted approach to the problem of the leaks, and makes it look like the government has something to hide (even if it hasn’t done anything wrong). If this approach is adopted, it will be a death knell for transparency, and shows the government is more concerned with shutting up dissidents, even if they are speaking the truth.

If this weren’t bad enough, they’re trying to use this as an argument to dismiss the review petitions as well. Though Venugopal claims his position is backed up by a 2004 judgment of the Supreme Court by Justice Arijit Pasayat, the judges were still unconvinced that they couldn’t consider relevant evidence just because it was illegally obtained.

Justice KM Joseph was the first to take a strong stance against this, reiterating several times that such evidence was admissible if it was relevant. CJI Gogoi incredulously asked if this meant any crime could be committed but the court would not be able to consider this if it related to defence deals. Justice SK Kaul said that even if the A-G was right, this couldn’t be a blanket prohibition.

National Security and Source Arguments Made Govt Look Weak

The nervousness of the government was also evident because of the constant refrains of national security, which made the attorney general and the government’s stance look extremely weak, because it caused him to make arguments that were entirely irrelevant to the court.

Whether we need aircraft that can combat F16s is irrelevant to whether the procedure was violated, and even if the Official Secrets Act has been violated, this only means the government can file criminal cases against the accused, not that their review petition should be dismissed. There is no danger of delaying the deal because of these objections because the court had already said they would not try to stop it, and this was not being asked for by the petitioners.

Venugopal also insisted that the petitioners would have to disclose who the source was which had provided the documents. Again, this is a bad look given he had already admitted the documents are genuine. The source would only matter if the information was fake, and there was a chance someone was fabricating information.

All in all, it looked like the government was intent on fighting all the wrong battles instead of countering the actual issues. It also meant that the A-G barely got around to making his argument on these documents being privileged under section 123 of the Evidence Act, which was actually much stronger.

4. Attorney-General’s Remark on Politicisation Could be Contempt of Court

Venugopal didn’t just stop at national security, he also brought up the politicisation of the Rafale controversy with “attacks” in Parliament, and questioning on TV channels. He claimed that this was a matter for Parliament to deal with, and the judiciary shouldn’t intervene in it.

This argument was confusing since the court had already looked into the deal previously, and these objections had not been raised. And then it became even more murky when the A-G said:

“Every single sentence from from you will be used by the opposition for destabilising the government. Would your Lordships want to be party to this?”

What exactly did the attorney general mean by this? Since when is the highest court in the land supposed to look at political considerations when deciding the law? Should the Supreme Court have considered how the BJP was going to utilise its judgment cancelling 2G licences in 2013 before passing it? Can the judges never act against the ruling government at the Centre, even if it has broken the law, just because the Opposition may make this a big deal?

It is quite disturbing to see arguments like this raised in court – note that Venugopal wasn’t talking about destabilisation of the nation, but of the government, at the hands of the Opposition. Such a blatantly political argument has no place in the highest court in the land, and certainly not from the attorney-general who holds a constitutional office.

Apart from the impropriety, this statement could also amount to criminal contempt under the Contempt of Courts Act 1971. Under section 2(c)(ii), criminal contempt includes any statement which “prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding”.

It is not difficult to see how an imputation that any statement by the court on the Rafale issue could ‘destabilise’ the government would amount to prejudicing the judicial proceedings.

5. Petitioners Have to be Careful About Making Critical Statements About Court

There was one other development in court that has flown a bit under the radar. One of the petitioners who has filed a review in the court is AAP MP Sanjay Singh. At the beginning of the proceedings, the Chief Justice informed Singh’s lawyer, senior advocate Sanjay Hegde, that his review petition would not be heard because of derogatory remarks made by Singh against the Supreme Court and its judges regarding the Rafale and Alok Verma cases.

The judges did not clarify exactly which remarks had earned their ire, but said that not entertaining his petition was the “minimum” and that they would also be considering contempt action against him.

The legality of this decision is not entirely clear, as technically, Singh’s review petition and any contempt proceedings against him are separate issues. The court could very well convict him of contempt, and punish him, while still hearing his review petition.

Regardless of the rights or wrongs of the decision, it is clear that CJI Gogoi is keeping track of media coverage of the court and the cases before it. This was also at issue during the Alok Verma case when he adjourned the hearings for several weeks because it looked like Verma and other petitioners were leaking information to the press.

This means Bhushan, Sinha and Shourie, as well as the other petitioners like ML Sharma, all need to be very careful about how they are talking about this case. Bhushan is already caught up in contempt proceedings regarding statements made by him relating to the appointment of CBI interim director Nageshwar Rao.

Of course, he and Shourie in particular have been careful to avoid making any controversial statements regarding this case, so they shouldn’t get into trouble, but this is something they and the other petitioners before the court will, unfortunately, have to keep in mind going forward.