A grammatical interpretation may have rendered a wrong Supreme Court judgment in the Rafale matter, say some legal experts. Others are of the view that the error can be easily corrected without undermining the judgment itself.
On Dec. 14, the Supreme Court dismissed a clutch of petitions, seeking a probe into the Narendra Modi government's purchase of Rafale fighter jets.
When arriving at that decision, the Supreme Court examined the issue of the transaction price. The Modi government's purchase has been alleged to be at a price much higher than the order approved by the previous government. The court noted in its order that pricing had been assessed by the Comptroller and Auditor General, whose report was placed before the Parliamentary Accounts Committee.
Soon after the apex court delivered the order, it was discovered that no such CAG report was even ready, leave alone with the PAC.
Parliament's PAC Chairman and senior Congress leader Mallikarjun Kharge accused the government of “misleading” the apex court by presenting wrong facts about the CAG report in its affidavit filed with the court when arguments were on.
Pricing of defence aircraft being a sensitive matter, the government affidavit on it was given to the court in a sealed cover.
On Saturday, the government sought to amend the error in the judgment by filing an application with the apex court.
The application claimed that the affidavit was referring to how the process works when it said the CAG report is examined by the PAC. Not that the report had been examined already by the PAC.
Centre files application in the Supreme Court clarifying that matter pertaining to #Rafale is pending with CAG & Court misinterpreted the reference to CAG.
SC judgment at para 25👇in #Rafale case has referred to the report of CAG which in fact is non existent at present. pic.twitter.com/DyVluXN2N2This error in the judgment is one of fact. Will it lead to a simple correction in the order text or is a review needed? BloombergQuint spoke to several senior lawyers for their views.
Mukul Rohatgi, Former Attorney General
This is not something that can impact the final conclusion of the court, Rohatgi said.
“I think it's a very insignificant thing. It seems that the government has said that the figures were shared with the CAG and further, the CAG sent it to the PAC. That's the kind of a misunderstanding. Sometimes the court records the wrong thing, sometimes the court misunderstands something, but that's not the basis of the judgment,” Rohatgi told BloombergQuint. “According to me, this erroneous writing was an inadvertent error and it has got nothing to do with the basis of the judgment. I am sure it will be corrected, and it is a political ‘hungama' that is been created on the judgment. I don't think it is fair for anybody to criticise the judgment.”
This is just a political storm in a tea cup.Mukul Rohatgi, Former Attorney General
KTS Tulsi, Senior Advocate And Rajya Sabha MPTulsi refused to accept that it was a clerical error and said the judgment needs to be recalled.
“It goes to the root of the matter. They will have to recall the order and then fix it. This is not a clerical mistake. Whether the court has misinterpreted or not, they will have to recall the order and then debate it further,'' Tulsi told BloombergQuint over phone.
It's a misleading report.KTS Tulsi, Senior Advocate
Indira Jaising, Senior AdvocateWith this, Jaising said, the main reason that was the basis of the judgment is gone.
“The judgment of the Supreme Court in Rafale deal is null and void. It must be recalled. It is based on the reasoning that CAG submitted the report which was examined by the PAC,” Jaising wrote on Twitter.
There is simply no provision in the. Constitution which allows the Supreme Court to “correct “its own decision in the manner requested by government . Rather what has been filed must be given a proper name , the Government has filed a review petition in #Rafeledeal
Sidharth Luthra, Senior AdvocateThe new development can be used by the petitioners to seek reversal of the order in the review hearing, Luthra said.
“Since the court has relied among other issues upon a fact that the pricing details have been shared with the CAG and examined by the PAC as a material aspect, in my view, it is open to the petitioners to file a review and contend that there is an error apparent on the face of the record and seek review of the judgment, if so advised,'' Luthra told BloombergQuint.
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