The Supreme Court on 14th November 2019 dismissed the review petitions filed against its verdict on the Rafale case where it gave the deal a clean chit. The review petitions were filed by Advocate Prashant Bhushan, Yashwant Sinha and Arun Shourie. Post the verdict, Congress took to lying profusely and the media played Nero’s guest.
Several news agencies misrepresented the verdict and the separate note by Justice KM Joseph that spoke about a technicality to insinuate that Justice Joseph gave a dissenting view of some sort, indicating wrong-doing.
The Media headlines after Rafale verdict
PTI had the following headline
Business Standard had the following headline. The story was written by Ajai Shukla who claims to be a defence analyst.
Following is the headline by ANI:
The sheer misrepresentation of the verdict in the media is staggering if not unexpected. Considering the conduct of the media during the Rafale controversy and how it played the role of a propaganda tool in the hands of Congress, is not surprising that even today, the media would mislead the masses.
Nexus between Rahul Gandhi and Media?
The media has almost lifted the exact words that Rahul Gandhi used in his tweet after the Rafale verdict was pronounced. In a tweet, Rahul Gandhi stated that the Supreme Court’s Justice KM Joseph has left open a “huge door” for an investigation into the Rafale deal and demanded that a probe must begin in full earnest. He also called for a Joint Parliamentary Committee (JPC) probe into the fighter jet contract.
The Congress in a press conference had said, “BJP is in habit of celebrating without going into details of verdict. The Supreme Court order has paved the way for a probe into the Rafale deal. The verdict has opened a window for a detailed enquiry into the matter, it has said that 14 Dec 2018 or today’s verdict is not an obstacle in way of the CBI from taking action in the case in future”.
One easily notices the eerie similarities between the exact words used by the media and by Congress. However, the Media and Congress are both lying blatantly and misinterpreting the judgement shamelessly.
Understanding the note by Supreme Court Justice KM Joseph in Rafale case
The exact words used by Justice Joseph were “a case MAY have been made out”. If it was the contention of Justice Joseph that the petitioners had already made a case against the Rafale deal, he would not have used the word ‘may’. Justice Joseph essentially said that the petitioners did not approach the right forum for their request.
The import of these words, which @RahulGandhi gleefully quoted, is, even if it is assumed a case is made out, petitioners (i.e., @pbhushan1 & Co) didn’t make the right requests. They basically wanted to bypass legal procedure for corruption cases. How do I say this? Paras 81 & 82 pic.twitter.com/SaYLimySdl
— Kartikeya Tanna (@KartikeyaTanna) November 15, 2019
The note by Justice Joseph mentions clearly that the petitioners did not even seek a preliminary inquiry and a direct FIR would mean raising fingers at a public figure without proof.
Interestingly, the Supreme Court judgement and even Justice Joseph’s note clearly stated that there is “absence of any substantial material to show to be a cse of commercial favouritism”. Further, it says that the Court lacks to expertise to judge on a technical basis.
It may be interesting to note here that Congress itself had said that they have no grouse with the Rafale jet technically, and their entire premise of wrong-doing was based on fictitious “commercial favouritism”. The court, even in the words which are being gleefully quoted by Rahul Gandhi has categorically said that there was no proof of commercial favouritism whatsoever.
Lawyer Kartikeya Tanna explained the essence of this in simple language. He said if his wallet gets stolen and he approaches the Homes Minister, the HM may listen to him sympathetically, however, tell him to go file a case in the local police station. When he gets to the police station, he will have to produce enough material for the police to decide what is to be done next. He cannot, however, go to the police station, give no facts and material but scream that the Home Minister opened the door for an FIR to be filed.
So, to get my remedy, I have to go to the thana, recount facts, describe thief, mention contents etc, i.e., give MATERIAL for police to decide what to do next.
But, if I shout that Home Minister of India has “OPENED THE DOORS” for an investigation, I’d be the one looking stupid
— Kartikeya Tanna (@KartikeyaTanna) November 15, 2019
Essentially, the door was never “closed” for an enquiry but the procedure was never followed by any of the parties since they had no material evidence to begin with.
Essentially, the separate but concurring note by Justice Joseph clarifies two things. One, the review petition filed by the petitioners has failed to prove any irregularities prima facie in the Rafale deal and hence they are not ordering an investigation pertaining to Rafale deal. Secondly, the order states that an investigation can be still launched but prior permission is needed to do so.
An investigation officer can take up an investigation on any such issues even if the magistrate has dismissed an application for an investigation under Section 156(3). However, the investigation has to take a prior sanction under Section 17(A) of the Prevention of Corruption Act, which has been clearly stated by Justice Joseph’s order and it has always been the case. Hence, the question of the Supreme Court allowing or not allowing to investigate further on the ‘irregularities’ in the Rafale deal does not arise as there is no bar for any such future investigation even though SC has clarified that there are no irregularities in the multi-crore jet deal.
In fact, the Supreme Court also observed that the petitioners filed the petition knowing fully well that Section 17 (A) would bar any FIR to be filed without prior approval.
It thus makes one wonder if all these court cases are just an excuse to keep an issue alive, knowing fully well that they don’t have the evidence of any wrong-doing whatsoever.
The blatant lies by Business Standard’s Ajai Shukla on Justice Joseph’s notes
Section 17 (A) of the Prevention of Corruption Act requires the government to accord prior permission for prosecuting an official for an offence carried out in the discharge of his duty.
Playing the quintessential Nero, Ajai Shukla in his Business Standard article lies blatantly regarding Justice Joseph observations with regards to this section.
Ajai Shukla lies blatantly in his article when he claims that Justice Joseph in his note “recognised” that “attempting to obtain government permission would be futile exercise” and the “the petitioners cannot succeed”.
Ajai Shukla essentially said that Justice KM Joseph told the petitioners that they would not succeed in getting permission from the government under Section 17 (A) and their attempt would be futile, insinuating that even Justice Joseph meant that the government has something to hide.
The note of Justice Joseph said no such thing. Justice Joseph actually said something completely different.
Justice KM Joseph said that even IF the court accepted the premise that on the bases of the petitions, an FIR must be registered, it “will be a futile exercise” since Section 17 (A) is in place.
Further, Justice Joseph said that “more importantly, Section 17 (A) of the Prevention of Corruption Act, in aa Review Petition, the petitioners cannot succeed”.
Essentially, Justice Joseph was enumerating the provisions of Sectio 17 (A) and in no way insinuating that the government would not approve. In fact, the government was not even a point of discussion. Justice Joseph was enumerating hypothetical scenarios to explain all positions vide Section 17 (A).
Justice Joseph said that EVEN IF the court had accepted the petition and ordered an FIR, Section 17 (A) would have come into play and thus, it would be “futile”. Secondly, Justice Joseph said that due to the existence of Section 17 (A), the Review Petition ‘cannot succeed’.
Ajai Shukla twists Justice Joseph’s words to write, “Joseph’s judgment recognised that attempting to obtain government permission would be “a futile exercise” and that “the petitioners cannot succeed”. A complete misrepresentation that would ideally amount to contempt of court.
The 2018 Supreme Court judgement dismissing petitions for inquiry into Rafale deal
In the 2018 judgement, the Court had made it amply clear that the allegations were baseless. SC had reasserted that the allegations made by the petitioners were inadequate. The Supreme Court had observed that after going through all the material carefully and after interacting with several airforce officers, there is no occasion to doubt the process. In fact, in the judgement, the court has mentioned that it has even gone through material etc regarding the pricing of the deal.
The court has said that broadly the processes have been followed and that the long negotiations in the MMRCA (Congress regime negotiations) did not procure any results.
The court also said that the wisdom to cancel the defunct MMRCA cannot be questioned since our defence capabilities were being diminished after our enemies have acquired 5th generation aircraft and we had none.
The Court had also revealed that the government had shared the pricing details with the court.
The Supreme Court Rafale judgement, in para 22, states clearly that the pricing is not in the public forum (other than base price) even though the petitioners based on news articles have asserted escalation of price. The pricing has been shared with the CAG and the CAG report has been examined by the PAC. The Chief of Air Staff too said that sharing the pricing would result in a breach of national security and that the pricing details have been mentioned in Article 10 of the contract between India and France. In the end, the court says that “despite this reluctance, the material has still been placed before the Court to satisfy its conscience”.
The Court was slightly on the secretive side while talking about the pricing, obviously, for national security concerns. The court, however, did say that it was compared the price of the previous deal and current deal and suffices to say that the official respondents say there is a financial benefit to the country.
Further, the court had said that “mere press interviews or suggestions cannot form the basis for judicial review by this Court”. The court said that there is “no material on record to show that this is a case of commercial favouritism to any party by the Indian government” to choose offset partner.
Essentially, the material evidence was already examined by the court and the petitions for inquiry dismissed with scathing observations that there was no wrong-doing in the case. In the review petition too, that there is no evidence of commercial favouritism has been reiterated.
It thus suffices to say that the Media, hand in gloves with Congress, is not only trying to help one political side form a narrative to undermine a duly elected government but also, severely undermine national security.
Update: After the OpIndia article, Business Standard updated its headline from “SC junks Rafale Review pleas, but keeps doors open for a CBI probe” to “SC junks pleas seeking review of verdict absolving govt in Rafale deal case”.
While Business Standard changed the headline of the article written by Ajai Shukla, it is yet to amend the blatantly fallacious interpretation of some statements made by Justice KM Joseph.
Editor, OpIndia.com since October 2017