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Petitioners seeking review of December 14 verdict say government mislead the Supreme Court, should be hauled up for perjury

The Supreme Court has begun its much anticipated hearing on a batch of 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.

As the 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, 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.

Attorney General KK Venugopal, appearing for the Centre, however, objected to the mentioning of the leaked documents on grounds that they were part of a file that had been stolen from the Union defence ministry and were, in fact, protected under the Official Secrets Act.

Venugopal said that the documents being relied upon by Sinha’s counsel are marked “secret”, and raised an objection against the maintainability of the review and perjury petitions. The Attorney General went on to claim that “action might be taken against the newspaper (The Hindu)” which published the leaked documents, while speculating that “documents were either stolen by former employees or present ones and an investigation is pending” in the matter.

Venugopal’s submission drew a prompt query from Chief Justice Gogoi who asked: “what steps or actions have been taken by the government after the documents were reportedly stolen.” While Venugopal told the court that he would inquire from the Centre with regard to the action taken and take necessary instructions from the government before making additional submissions before the court in this regard, Sinha’s counsel retorted that documents published by The Hindu were based largely on file notings and that “notings are supposed to come in public domain according to the provisions of RTI Act.”

The Attorney General, however, emphasized that provisions of the RTI Act do not come into play where matters covered under the Official Secrets Act are concerned. Venugopal also sought initiation of contempt of court proceedings against The Hindu newspaper for timing the publication of its reports related to the Rafale Deal in a manner that they influence the court proceedings in the case. “The strategy is to put out a news item the day before the hearing so as to influence the hearing. Today also The Hindu has published something. This by itself is contempt of court,” Venugopal said.

The bench then rose for lunch and will resume hearing of the review petitions after 2 PM. 

— India Legal Bureau

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