Justice K.M. Joseph on Friday asked the government why there was still no FIR registered on a corruption complaint made to the CBI in October last year in connection with the 36 Rafale jets deal.
“Question here is whether you are obliged under the law to register an FIR when a complaint is made,” Justice Joseph asked Attorney-General K.K. Venugopal. The queries came during a two-hour hearing at the end of which the Bench, led by Chief Justice of India Ranjan Gogoi, reserved the Rafale review petitions for judgment.
The complaint was made in October under various provisions of the Prevention of Corruption Act. Justice Joseph referred to a Constitution Bench judgment in the Lalithakumari case, which held that the police or a statutory authority like the CBI was duty-bound to file an FIR and investigate a complaint. If later no prima facie case was made out, the probe could be closed and a copy of the report given to the complainant.
However, the complaint filed by review petitioners with 70-odd pages of documents, is yet to be acted upon.
In fact, the trio — union ministers Yashwant Sinha, Arun Shourie and advocate Prashant Bhushan — had moved the Supreme Court primarily seeking a direction for a fair investigation into their complaint.
Mr. Venugopal replied that a complaint would be investigated if it prima facie showed ingredients of an offence. He said the Rafale deal was not just another contract for a highway or a dam.
A combative government also took offence when Justice Joseph asked it to provide records of the deliberations made by the Indian Negotiating Team (INT) after three of its domain experts wrote a stinging eight-page dissent note concluding that the Narendra Modi government’s Rafale deal for 36 jets was not on “better terms” than the offer made by Dassault Aviation during the procurement process for 126 aircraft under the United Progressive Alliance government.
‘Concerns settled’
The judge’s question came after Mr. Venugopal told the Bench that though these members had dissented initially, it was later settled in a collegiate manner. The government’s affidavit said, “The concerns raised by members of the INT were deliberated, recorded and addressed, while ensuring utmost integrity and transparency in the process, allowing opinions to be freely expressed, recorded, discussed and, if necessary, modified”.
But Justice Joseph persisted in his request for the records. “I will produce the records if Your Lordships ask me, but I have to say you have no jurisdiction to ask. Your Lordships are taken in by these selective media leaks based on documents obtained through theft. You are listening to them and saying ‘we will certainly ask for this and this document’,” Mr. Venugopal retorted.
Finally, the CJI intervened to bring peace and told the lawyer that “we would tell you if we want these documents”.
Mr. Venugopal said the government was under no obligation to produce the gamut of documents simply for the reason that the court did not ask it to do so. A “mistake” in interpretation found in the December 14 judgment upholding the Rafale deal cannot be the basis of review, he said.
Advocate Prashant Bhushan countered by asking how the government “anticipated in the Supreme Court in November 2018 that the CAG report, which was presented in February 2019, would redact the Rafale pricing details?”
