SC ‘misinterpreted’ statement made by govt in sealed cover on Rafale pricing details

The government moved the Supreme Court on Saturday for a correction in the Rafale judgment, saying the court had erred in English grammar to “misinterpret” information submitted to it in a sealed cover note about the pricing of the 36 fighter jet deal.

The eight-page “correction” application, filed by the Ministry of Defence, indicated that the three-judge Bench, led by Chief Justice of India Ranjan Gogoi, had misread the English tenses in the government’s sealed cover/confidential note on pricing details. In short, the government claimed that what had been represented as “procedure” to be followed in the future was misconstrued as pertaining to the past.

The controversy boils down to two lines in paragraph 25 of the judgment pronounced by the Bench on December 14. The verdict said, “the pricing details have, however, been shared with the Comptroller and Auditor General (CAG), and the report of the CAG has been examined by the Public Accounts Committee (PAC). Only a redacted portion of the report was placed before the Parliament and is in public domain”.

The Supreme Court “misinterpreted” a statement made by the government in a sealed cover on the pricing details of the 36 Rafale jets deal, a highly ranked source connected to the judicial proceedings in the court said on Saturday.

The pricing details of the deal were “shared” with the Comptroller and Auditor General (CAG) and the CAG report “is to be placed” before the Public Accounts Committee (PAC) led by Mallikarjun Kharge. The government has filed an application in the Supreme Court urging it to “correct the misinterpretation,” the source said.

The judgment gives the impression that the CAG report was placed before the PAC, which had examined it.

The observation in the judgment set off a political storm with leaders of the Congress party accusing the government of having misled the court. Congress president Rahul Gandhi held a press conference on Friday, claiming the PAC was in possession of no such CAG report on Rafale prices. PAC chairman Mallikarjun Kharge demanded an apology from the government and mooted the idea of summoning the Attorney General, who represented the Centre in the Rafale case in the Supreme Court, and the CAG.

Confusion over tense

“The Government of India has filed the application to correct the statement in the Rafale judgment. The court’s statement was based on the sealed cover note in which certain points were set out. What was set out was that the pricing details of Rafale have been shared with the CAG and the CAG report is to be given to the PAC… the PAC report, in a redacted form, is to be placed before the Parliament and in public domain… Now, this has been misinterpreted by the court, which has said that the CAG report ‘has been placed’ — instead of saying ‘is to be placed’ — before the PAC,” a highly-ranked source associated with the Rafale case in the Supreme Court explained.

The source confirmed that no oral submission was made by Attorney-General K.K. Venugopal about the CAG report in open court during the hearings. “Because it was part of a sealed cover report, there was no question of an oral submission,” the source said.

In its application, the government has reproduced the relevant portion in the sealed cover note. The relevant portion says: “The government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain”.

Stated procedure

The application explained that the government has only laid out “the procedure” to be followed after the CAG prepares its report on the Rafale prices. The procedure is that CAG report “is examined by the PAC”.

“The very fact that the present tense ‘is’ is used would mean that the reference is to the procedure which will be followed as and when the CAG report is ready,” the government application said.

Secondly, the procedure is that a “redacted version” of the CAG report is placed in the Parliament and in public domain.

The statement in the confidential note that “only a redacted version of the report ‘is’ placed before Parliament, is referred to in the judgment as ‘only a redacted portion of the report was placed before the Parliament, and is in public domain’,” the government contended.

It said the misinterpretation by the court was “unfortunate”.The Ministry urged the court to replace the current two lines in paragraph 25 of the judgment with what was said exactly in the confidential note.

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