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Supreme Court: Adding to the series of important rulings that are being passed before CJI Ranjan Gogoi retires, the Court is to pronounce 2 major verdicts tomorrow. CJI Gogoi retires on November 17, 2019.


SABARIMALA REVIEW PETITION


The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ will pronounce the verdict in a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.


RAFALE REVIEW PETITION


The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ will pronounce the verdict in the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Bench, in the said order, said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.


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Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and SK Kaul and KM Joseph, JJ has directed the Centre to file response by May 4 to the petitions seeking review of last December’s verdict by which the Court had dismissed the pleas challenging India’s deal to procure 36 Rafale fighter jets from France. The bench did not allow the plea of the Centre that it be granted four weeks time to file its response to the pleas.

The Court has fixed May 6 for hearing the petitions.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the Court giving clean chit to the Rafale deal. AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

In the verdict, the apex court said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal. It said,

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

The court said there was no substantial evidence of commercial favouritism to any private entity. It aslo said,

Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft manufactured by French aerospace company Dassault Aviation. A deal to procure the jets was signed between India and France in 2015. The delivery is expected to begin in September this year.


Also read:

Rafale Deal: SC dismisses Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible. Joseph, J, wrote a separate but concurring judgment.

CJI Gogoi, writing for himself and Kaul, J wrote,

“even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?”

On ‘The Hindu’s’ right to publish the documents in question

the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press.”

The Court said that no law enacted by Parliament specifically barring or prohibiting the publication   of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to it’s notice. Hence, the right to such publication is well within the constitutional guarantee of freedom of speech.

KM Joseph, J’s in his concurrent opinion noted

“The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.”

On alleged violation of Sections 3 and 5 of the Official Secrets Act, 1923

The Court noticed that there is no provision in the Official Secrets Act and no such provision in any other statute by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.

Insofar as the claim of privilege is concerned, on the very face of  it, Section 123 of the Indian   Evidence Act, 1872 relates to unpublished public records. Noticing that the three documents have been published in different editions of ‘The Hindu’ newspaper, the Court said,

“the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value.”

On exemption from disclosure under Section 8(2) of the Right to Information Act, 2005

The Court noticed that Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub­section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. It said,

“When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.”

On potential of the case to threaten the security of citizens

The Court rejected the contention and noted the lines from Kesavananda Bharati  v. State of Kerala, (1973) 4 SCC 225,

“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 court room, 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 favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”

[Yashwant Sinha v. CBI, 2019 SCC OnLine SC 517, decided on 10.04.2019]


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Supreme Court: Making it clear that it will decide first on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case, the 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ reserved it’s order on the preliminary objections regarding admissibility of the leaked documents.

Attorney General K K Venugopal had argued that the Government had privilege over documents pertaining to the Rafale fighter jet deal with France and that no one can produce them in the court without the permission of the department concerned. He referred to section 123 of the Evidence Act and provisions of RTI Act and said that no one can publish documents which relate to national security as the security of the State supercedes everything.

Advocate Prashant Bhushan, one of the petitioners seeking review, opposed the submission and said that the Rafale deal documents, which AG says are privileged, have been published and are already in public domain. He said that provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies. He also argued that the Press Council of India Act provides provisions for protecting sources of journalists.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

Yesterday, the Court had allowed the Defence Ministry to file an affidavit in the matter.

(With inputs from Business Standard)

Hot Off The PressNews

Supreme Court: The Court has allowed the Defence Ministry to file an affidavit in the Rafale Deal case that will come up for hearing tomorrow.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

Hot Off The PressNews

Supreme Court: The government has told the Supreme Court that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

Attorney General KK Venugopal told the Court that those who put documents on the Rafale deal in the public domain are guilty under the Official Secrets Act as also contempt of court.

However, The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The 3-judge bench of CJ Ranjan Gogoi and SK Kaul and KM Joseph, JJ was hearing a batch of petitions seeking a review of its December 14 verdict dismissing all the pleas against the deal procured by India from France.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed the petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of PILs.

When Bhushan referred to an articles written by Ram, AG said the write-ups were based on stolen documents. He also told the Court that an FIR has not been registered so far into the theft of documents.

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

When AG said that any order to the effect would be damaging to the country as the recent incidents have shown how vulnerable is the scenario in which the country was trying to meet its defence requirements, the Court said that the issue of national security did not arise in the case as allegations were of grave crime of corruption.

The Court will next hear the matter on March 14.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and L N Rao and Sanjiv Khanna, JJ said that it would consider listing of a plea seeking review of its verdict in the Rafale case after Advocate Prashant Bhushan sought urgent listing of the matter. The Court said:

“The combination (of the judges) of bench will have to be changed. It is very difficult. We will do something for it.”

The Court had, on December 14 last year, dismissed a clutch of PILs, including the one filed by former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, saying there was “no occasion to doubt” the decision-making process of the Centre in the procurement of 36 Rafale jets from France.

(Source: PTI)

Case BriefsSupreme Court

“Perception of individuals cannot be the basis of fishing and roving enquiry by the Court.”

Supreme Court: A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce. 

Background Note:

In June, 2001, an in-principle approval was granted for procurement of 126 fighter-jets to augment the strength of the Indian Airforce. A more transparent Defence Procurement Procedure (DPP) was formulated in the year 2002, further in the year 2005 a robust ‘offset clause’ was included in the DPP in order to promote Indigenisation which was followed by Services Qualitative Requirements (SQRs) in the year 2006. Later in the year 2007, Defence Acquisition Council (DAC) granted ‘Acceptance of Necessity’ for procurement of 126 medium multi role combat aircrafts.

Bidding process commenced in August, 2007 and the proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. Commercial bids were opened in November, 2011. Dassault Aviation was placed as the L-1 by January 2012. Negotiations commenced and continued but without any final result.

It has been stated that a process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015, which was finally withdrawn in June 2015. Negotiations were carried out and the process was completed with the approval of the Cabinet Committee on Security (CCS). Further, contract along with Aircraft Package Supply Protocol; Weapons Package Supply Protocol; Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23-09-2016 which were to be delivered from October, 2019.

Triggering Point for the present Writ Petitions:

In September, 2018, certain newspapers reported a statement made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India, which seems to have triggered the present petition.

Court’s Analysis & Decision:

The Bench noted that, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement. Referring to the decision in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, Court held that “it was not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review.” It was also stated by the Court that various judicial pronouncements from Tata Cellular v. Union of India, (1994) 6 SCC 651, emphasise the aspect that scrutiny should be limited to the Wednesbury Principle of reasonableness and absence of mala fides or favouritism.

Coming to the present issue, it was stated that it is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself, and the said aspect was highlighted and emphasized in the decision of Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215. Therefore, “the extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth for the same.”

Hence, the Court scrutinised the controversy raised in the writ petitions which primarily raise 3 broad areas of concern, namely, 

  1. decision-making process; 
  2. difference in pricing; and
  3. the choice of IOP.

On a careful consideration of every aspect of the above-stated issue and concerns, the Court extended its’ view by stating that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. To which the bench stated that there is no reason to really doubt the process and further they were informed that there is financial advantage to our nation.

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

In regard to the pricing issue, the Court stated that it is certainly not the job of the Court to carry out a comparison of the pricing details in matters like the present. We say no more as the material has to be kept in a confidential domain.

Lastly, the Court stated that it is neither appropriate nor within the experience of the Supreme Court to step into the arena of what is technically feasible or not. According to the Court, there was no substantial record to show that this is a case of commercial favouritism.

Thus, the writ petitions were dismissed and held that there is no reason for any intervention by the Supreme Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.[Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 2807, decided on 14-12-2018]

Hot Off The PressNews

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. pronounced the ‘Rafale Deal’ verdict after it had reserved its judgment on the same, today by dismissing the petitions seeking probe into the deal.

Pointers as stated by the bench :

“No occasion to doubt the decision-making process in the procurement of 36 Rafale Jets. and Minor variations in clauses should not amount to the setting aside of the contract.”

CJ Ranjan Gogoi: There cannot be a uniform standard of judicial review in defence matters.

CJI: It isn’t a job of Court to compare pricing details.

“Our country cannot be unprepared. Talked to senior IAF officers who pointed out the need for 4th and 5th generation fighter jets. “Not correct for the Court to sit as an appellate authority on each and every aspect of the deal.”

“We cannot use our powers of judicial review to compare prices between earlier Rafale ROP and present deal for 36 jets. On the ground of national security ‘, we say no more'”.

Further, the bench stated that “We cannot go into the wisdom of why the deal for 36 Rafale jets were made and not the original 126 aircraft. We cannot ask the government to go for 126.

Source: The Hindu

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and U.U. Lalit and K.M. Joseph, JJ. while hearing petitions concerning the “Rafale Fighter Jets” asked the  Centre to submit the pricing details for the same within a period of 10 days.

The Bench stated that “strategic and confidential” information need not be shared. Further, the Court in response to Attorney General K.K. Venugopal’s submission regarding “reservations about disclosing the details of pricing of the jets which were not disclosed even in Parliament”, said that “if pricing is something exclusive and you are not sharing it with us, please file an affidavit and say so.”

Further, the bench also stated that “What has been questioned is bonafide of the decision making process and price/cost at which the same is to be procured.”

Therefore, in the present order the bench has stated that further details that could legitimately come in the public domain with regard to the induction of the Indian offset partner (if any) be also furnished to the learned counsels for the parties, as well as ,
the petitioners in person.

Background:
In its earlier order Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 1920:

The Court stated in categorical terms that “information which was sought would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirements of the Indian Air Force.” The requisite information was directed to be placed before the Court in three separate sealed covers on or before 29 October 2018, to be filed with the Secretary General of the Court.

The matter is further listed for 14-11-2018. [Manohar Lal Sharma v. Narendra Damodardas Modi,2018 SCC OnLine SC 2278, Order dated 31-10-2018]