This article is written by Smaranika Sen from Kolkata Police Law Institute. This case exhaustively deals with the analysis of Yashwant Sinha and others v. CBI and others.

This article has been published by Abanti Bose.

Introduction

Very few countries have such a diverse inventory of aircraft as the Indian Air Force. Lately, a very crucial case that involved a political controversy regarding an aircraft deal which took place in the history of India. This case is about the controversial Rs 59,000 crore Rafale jet deal. The controversy created huge havoc in the diplomatic situation of the country. Various questions arose in the minds of the citizens. Indications of corruption and favoritism were stated by many opposition leaders and influential people of the country. 

Let us now analyze the landmark case Yashwant Sinha and others v CBI and others(2019) or popularly known as the Rafale jet deal case.

Background of the case

In 2007, the United Progressive Alliance (hereinafter referred to as UPA) government released tenders for around 126 aircraft. The tenders were released based on the demand by the Indian Air Force. 

In 2012, a French company named Dassault Aviation made the lowest bids for Rafale aircraft. The terms and conditions of the sale and purchase of 126 jets were that out of 126 aircraft 18 aircraft were to be imported in fly-away condition and the other 108 aircraft were supposed to be manufactured by Hindustan Aeronautics Limited (HAL) with the assistance of Dassault Aviation. 

Though in 2014, Hindustan Aeronautics Limited and Dassault Aviation signed an agreement, negotiations were also carried out. However, the deal was not finalized. 

In April 2015, during the visit of Prime Minister Narendra Modi in Paris, he announced the buying of 36 Rafale fighter aircraft. Eventually, in June 2015, the Defence Ministry in Rajya Sabha stated about the official withdrawal of the deal of 126 aircraft tender. He also stated that negotiations have begun for the 36 Rafale aircraft deal. 

Finally in January 2016, during the visit of France President Francois Hollande in India, a memorandum of understanding on the sale and purchase of Rafale jets was signed between India and France. India and France had signed this Rafale jet deal for 36 Rafale jets €7.87 million which is approximately Rs 59,000 crore. As per the deal, the delivery of jets would be in fly-away condition and the delivery would start from September 2018. In October 2016, Anil Ambani’s Reliance Defence and Dassault Aviation announced a joint venture. As per the contract, Dassault on obligatory terms was asked to make compensation investments (offset) in India worth 50% of the value of purchase. 

In 2018, a French publication Mediapart interviewed former French President Francois Hollande where he stated that he had no choice in selecting India as an offset partner. He further added that the name of Reliance was given from the Indian side. This did not come good on the part of the Centre. Oppositions started to ask questions and allege various blames regarding the deal. India’s Defence Ministry as a reply to such statements stated that neither of the two governments was involved in the commercial decisions. Dassault Aviation also issued statements stating that it was solely Dassault’s decision to choose Reliance. Congress, on the other hand, alleged the Central Government that the contract which was signed by the Central Government was at a much higher price than it was under UPA rule. Many opposition leaders demanded that the government must reveal the price. 

However, the Central Government refused to disclose the price as it was covered under the Secrecy Clause of the deal. However, prominent opposition leader Mr. Rahul Gandhi claimed that he was ‘personally’ informed by the former France President that the prices could be revealed without jeopardizing the deal. Thereafter, the opposition started to ask several questions on this deal, indicating that there was corruption lying underneath, etc. Several petitions were submitted before the Supreme Court. Let us have a look at those writ petitions.

Facts of the case

Writ petitions

The first writ petition was filed before the Supreme Court by Mr. Manohar Lal Sharma; a practicing lawyer in the Supreme Court. The petitioner prayed for registration of an FIR under relevant provisions of Indian Penal Code 1860, and a Supreme Court-monitored investigation. He further prayed for quashing the Inter-Governmental Agreement of 2016 for the sale-purchase of 36 Rafale jet aircraft. 

The second writ petition was filed by Shri Vineet Dhanda; a public-spirited man in the view of reports and articles published in the newspaper, etc. 

The third writ petition was filed by Shri Sanjay Singh; Member of Parliament. He alleged illegality and non-transparency in the procurement process. He further prayed for investigation and Supreme Court scrutiny in the canceled 126 aircraft deal, price alterations in the new 36 Rafale aircraft deal, and how Reliance can become an offset partner replacing HAL. He also prayed for quashing the 36 Rafale jet aircraft deal. 

The last and final writ petition was filed by Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan; public-spirited Indians. In their prayers, they stated that they were aggrieved because of the non-registration of an FIR by CBI on the basis of the complaint made by them on 4th October 2018. The complaint, according to the petitioners, disclosed prima facie evidence of the commission of a cognizable offence under the Prevention of Corruption Act, 1988. They prayed for registration of the FIR and its investigation and submission of the periodic status of the reports to the Supreme Court.

The fate of these petitions

There were three issues involved. The issues have been stated below:

  • Pricing factor, 
  • Offset factor, and 
  • Whether an investigation was required or not. 

The Supreme Court after detailed observation and scrutiny of the issues stated the petitions stand dismissed. It is so because the Supreme Court believed that there was no requirement for investigation in a sensitive 36 aircraft purchase deal. The reason for such a decision is stated below.

On the pricing issue, the government has given the basic price of Rafale aircraft in sealed covers before the Supreme Court and the Parliament in the view of protecting national security. However, the pricing details have been shared with the Comptroller and Auditor General and have been examined by the Public Accounts Committee. The Supreme Court stated that the competent authority has checked the pricing details even the Supreme Court itself and it has been held that the Supreme Court cannot compare prices as per the prayer and in view of sensitive information, it cannot further state anything in this in the public domain.

Regarding the offset issue, the Supreme Court stated that the media releases and press interviews of the offset issue have been categorically denied by every side. Thus, the Supreme Court cannot make a judicial review when there has been denial on every side and there is no such substantial record that shows commercial favoritism.

It further stated that on the basis of perceptions of individuals, the Supreme Court cannot grant inquiry permission.

A review petition was filed before the Supreme Court by Yashwant Sinha, Shri Arun Shourie, and Shri Prashant Bhushan as a response to the impugned order passed by the Supreme Court on 14th of December, 2018.

Petitioners’ contention

According to the petitioner, the judgment delivered by the Supreme Court was based on the errors apparent on the face of the record and certain subsequent information has come under the light. If such information is not considered, then it will not bring justice. The petitioners further stated that this present petition does not contain the exact same prayer as the first petition, however, they form part and parcel of the present petition. 

The petitioners stated that the judgment given by the honorable Supreme Court is mainly given based on the connected petitions submitted before the Supreme Court. The Supreme Court has stated distinctly on pricing issue, the offset issue, and the inquiry issue, but the Supreme Court had not distinctly stated the non-registration of FIR issue and investigation by CBI. The petitioners further stated that the impugned judgement merely records the prayer of petitioners but does not adjudicate upon the material placed on record and the law for the registration of FIR and investigation as laid down by a Constitutional Bench in the case Lalitha Kumari v. Government of Uttar Pradesh, (2014).

Respondents’ contention

An objection was made by the Attorney General on behalf of the Central Bureau of Investigation and others regarding the maintainability of the review petition. According to the Attorney General, the review petition lacks to be bona fide. The review petitions append three documents that are unauthorizedly removed from the offence of the Defence Ministry and Government of India. The three documents are:

  • An eight-page note written by three members of the Indian Negotiating Team (INT) charged in reference to the Rafale deal (note dated 01.06.2016) 
  • Note­ 18 of the Ministry of Defence(Government of India), F.No. AirHQ/S/96380/3/ASR PC­XXVI (Marked secret under the Official Secrets Act, 1923)  
  • Note­ 10 written by S.K. Sharma (Deputy Secretary, MoD, Air­III), Note dated 24.11.2015 (Marked secret under the Official Secrets Act)                                                                                                                                                                                                                                                                            

The Attorney General stated that the unauthorized removal of these documents and using them to support their pleas are in violation of Sections 3 and 5 of the Official Secrets Act, 1923, and it also cannot be accessed under the Right to Information Act. Even Section 123 of the Indian Evidence Act, 1872 stands in violation.

Observations of the Supreme Court

The Supreme Court observed that three documents which have been alleged by the Attorney General that the petitioners have been unauthorizedly using them were published in a prominent newspaper ‘The Hindu’. The documents were published on different dates in the month of February. Document- Note­ 18 of the Ministry of Defence was also published in ‘The Wire’. The Supreme Court further observed that the three documents which were published in the newspaper were eventually available in the public domain, however, this was not contested by the respondents. 

Whether the newspapers had the right to publish such information

The right of those newspapers and digital print media comes from the Constitutional right guaranteed by the freedom of speech. Even the Supreme Court stated that no laws enacted by the Parliament have barred the newspaper from publishing such information or has restricted the right under Article 19 of the Constitution. The Supreme Court in this regard referred to two landmark cases i.e. Romesh Thappar v State of  Madras(1950) and Brij Bhushan vs. The State of Delhi(1950)

Claim of privilege

Regarding the issue of claim of privilege, the Supreme Court observed that Section 123 of the Indian Evidence Act relates to unpublished documents. However, it was noticed that the documents were already published in the newspaper. The Supreme Court referred to the case of S.P. Gupta vs. Union of India (1982), where it was held that a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially considered in the view of public interest and to satisfy itself that public interest is not put to jeopardize by requiring disclosure the Supreme Court may even inspect the document in question though the said power must be exercised in a sparing manner. However, in the present case, such power is not required as the documents were already available in the public domain. Therefore, the Supreme Court held that the claim of immunity cannot be maintained under Section 123 of the Evidence Act after observing the facts and circumstances of the present case.

Issue regarding the presentation of those three documents before the Court

Another issue that has been stated by the Attorney General is the manner in which those three documents have been procured and presented before the Supreme Court. The Supreme Court again stated that those three documents were already available in the public domain yet even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Supreme Court? The Supreme Court referred to the case of Pooran Mal vs. Director of Inspection(Investigation) of Income­Tax, New Delhi(1974), where it was held that “test of admissibility of evidence lies in its   relevancy unless  there is an express or necessarily  implied prohibition in  the Constitution  or  other  law evidence obtained as a result of illegal search or seizure is not liable to be shut out.” The Supreme Court analyzed that the petitioners have produced the documents before the Court when such documents were already published in the newspapers, therefore, it cannot be determined that the petitioners have procured them in an illegal manner.

Right to Information

Regarding the issue of access to the Right to Information, the Supreme Court referred to the case Chief Information Commissioner vs. State of Manipur (2011) where it was held that the Act was created to promote transparency and enhance the value of democracy. The Supreme Court, therefore held that as the documents in question were already available in the public domain there was no need to restrict them under Section 8(1)(a) of the Right to Information Act, 2005. The said Section bars citizens to access certain information under the Act in the view that might breach the security of the nation and harm the common interests of the public at large. However, the documents have been already published in leading newspapers and have reached all, thus the Supreme Court stated that there was no need to restrict them under the said Act.

Judicial review

The Attorney General also raised a question that there were certain state actions that lie out of judicial review and remain in the political domain. In this regard, the Supreme Court referred to the case of Kesavananda Bharati Sripadagalvaru v. State of Kerala(1973), where it was held “That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the Supreme Courtroom, that judges, in order to give legitimacy to their decision, have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favor and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to color the decision.” Therefore, the Supreme Court held that the review petition cannot be dismissed on the ground that the fact-in-issue of the case comes under the arena of the political domain.

Judgement

Former Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul finally gave the judgement. They held the objections raised by the respondents dismissed and affirmed that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents.

Concurring verdict

Justice KM Joseph started his verdict with the assessment of the freedom of the press. He stressed the fact that the press should definitely enjoy the right to freedom of speech but a lack of a deep sense of responsibility might hamper the democratic value of a country. 

Regarding the claim of privilege under Section 123 of the Evidence Act, he stated that in this case, the documents in respect of which the privilege is claimed are already on record. Now if the issue is dealt with in the manner in which the document has been procured and presented then it can be stated that the case does not strictly involve in a sense the claim for the privilege as the petitioners have not called upon the respondents to produce the original. Even the state does not take objection to the correctness of the contents of the documents. The request of the respondents is to remove the documents from the record. Therefore, Justice KM Joseph observed that in regard to documents that are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice.

Finally, Justice KM Joseph held that he agrees with the order of Former CJI Ranjan Gogoi.

Deciding the review petition on its merit

Non-registration of FIR

As already stated above, the petitioners have prayed for the registration of FIR. In this regard, the Supreme Court held that after all the observations and analysis, they have come to the conclusion there is no requirement for registration.

Invoking of jurisdiction

The Supreme Court stated that the petitioners on the basis of certain documents have tried to showcase some contradictory materials regarding the deal. However, the Court has held that such contradictions were merely opinions and decisions while the process of making the decision. It further stated that before every decision there always remains debates and discussions and therefore each such debate and opinion cannot be held and inquired differently; rather it would defeat the whole purpose of debate in the decision-making process.

Final judgement

The Supreme Court finally stated that the review petition stands without any merit thus it stands dismissed.

Conclusion

This case is a landmark case and it holds utter importance in the history of India. The case acts as a precedent and gives a binding and persuasive judgement.

References


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