New Delhi: The Supreme Court on Thursday junked the petitions seeking reconsideration of its 2018 decision giving a clean chit to the Narendra Modi government’s acquisition of 36 Rafale fighters in a ready-to-fly state and a direction to the CBI to register an FIR for alleged commission of “cognisable offences” in the deal. The court in its December 14, 2018 verdict said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from French company Dassault Aviation.
Speaking for himself and Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul said: “We are, thus, of the view the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution.”
The majority judgment also rejected the plea by former finance minister Yashwant Sinha, journalist- politician Arun Shourie and activist lawyer Prashant Bhushan, seeking a direction to the CBI to register an FIR on their complaint relating to alleged “cognisable offences” in the deal.
Noting that in their December 14, 2018 verdict they had elaborately dealt with three aspects of the deal involving the “decision-making process”, “pricing” and “offsets partner”, Justice Kaul described as an “unfair submission” that without ordering the registration of an FIR and investigations by the CBI the court had adjudicated the Rafale issue “prematurely” without the benefit of investigation and inquiry into the disputed questions of facts.
“No doubt there was a prayer made for the registration of an FIR and further investigation, but once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners, which automatically covered the direction for registration of FIR,” said Justice Kaul in the majority judgment.
While concurring with the majority ruling rejecting the review petitions, Justice K.M. Joseph in his separate judgment appears to have taken a divergent view on the CBI registering FIR and undertaking the investigation. “If the complaint of the petitioner does make out the commission of the cognisable offence, an FIR is to be registered and the matter investigated. It will be no answer to suggest that this court has approved of the matter in judicial review proceedings under Article 32 of the Constitution, and making it clear that the entire exercise must be viewed from the prism of the limited judicial review the court undertakes in such proceedings, and this court would end up paying less than lip service to the law” laid down by the Constitution Bench mandating the investigating agency to register an FIR and undertake the probe on a complaint.”
Referring to Section 17A of Prevention of Corruption Act, inserted into the anti-corruption law in 2018, that provides for prior approval of the government before seeking an inquiry or investigation against an official, Justice Joseph said that Mr Sinha, Mr Shourie and Mr Bhushan had approached the CBI “fully knowing that Section 17A constituted a bar to any inquiry or investigation unless there was previous approval.”
“17A (1) of the Prevention of Corruption Act says: ‘No police officer shall conduct any inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without previous approval...’.”
Addressing a hypothetical situation, Justice Joseph said: “Even proceedings on the basis that on the petitioners complaint, an FIR must be registered as it purports to disclose cognisable offences and the court must so direct, will it not be a futile exercise having regard to Section 17A?”
Having said this, Justice Joseph went on to say: “However, it is my view the judgment sought to be reviewed would not stand in the way of” the CBI “from taking action on the... complaint in accordance with the law and subject” to CBI obtaining previous approval under Section 17A of the Prevention of Corruption Act.”