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In a major setback for the Narendra Modi government, the Supreme Court has decided that it will rely on the rely upon the new documents to decide review petitions. All three judges were unanimous in their verdict.

The Rafale episode thus gets a new lease of life and coming as it does on the eve of the first day of polling for the general elections,l it is not good news for the BJP and the prime minister and a major boost for the opposition.

The  Supreme Court had in March begun its much anticipated hearing on the petitions seeking review of its December 14 verdict which had dismissed demands for a court monitored investigation into irregularities committed by Prime Minister Narendra Modi’s government in negotiating the Rafale fighter jet deal with the French government and Dassault Aviation.

On march 6, as the 3 judge three-judge bench of Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph, which had delivered the December 14 judgment, began hearing the review petitions, on Wednesday (March 6), counsel for former Union finance minister Yashwant Sinha, the most high profile petitioner in the case,  had urged the court to rap the Centre for perjury.Stating that the December 14 verdict did not go into their prayer for a court-monitored investigation into the Rafale deal but looked at prayers made by other petitioners – advocates ML Sharma and Vineet Dhanda – for cancellation of the deal, the counsel for Sinha argued that the real question before the court is whether their complaint warranted a probe.

Placing reliance on a set of documents related to the Rafale deal and the negotiations between the Indian and French sides that preceded it but which came in the public domain after the December 14 verdict, Sinha’s counsel said the apex court had relied upon “a large number of serious errors of fact” while dismissing the prayer for a probe into the deal.

“Those facts were presumably supplied to the court by the Centre in sealed cover notes…Critical material facts were suppressed from the court… the government should be hauled up for perjury,” Sinha’s counsel said.

He then proceeded to place reliance on an eight page note, primarily related to matters that have come in the public domain as part of investigative news reports published by The Hindu newspaper over the past two months.

These reports were sourced from information gathered through files purportedly leaked from the Union defence ministry and highlighted the following details: a) contrary to the Centre’s submission before the apex court, the Prime Minister’s Office interfered with and possibly influenced the outcome of the negotiations with the French government on the Rafale deal even though an Indian Negotiation Team (INT) of the Union defence ministry was formed for the specific purpose, b) the Indian government waived the sovereign guarantee clause finalized during earlier negotiations between the (INT) and Dassault Aviation thereby causing a windfall gain for the fighter jet manufacturer at the cost of the Indian exchequer, c) members of the INT had objected to the interference by the PMO in the negotiation process.

Further, the review petitions also place reliance on the fact that while the apex court’s December 14 verdict had given a clean chit to the Rafale deal on grounds that it had been cleared by the Comptroller & Auditor General and that the auditor’s report had been accepted by a Parliamentary panel, the C&AG report on the Rafale deal had not been finalized and presented before Parliament before February 13- i.e. two months after the top court’s verdict.

–India Legal Bureau

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