By Amritananda Chakravorty
In recent times, the Supreme Court is not just the final arbiter of rights, but also the hub of all political developments. Not a day goes by when the Highest Court does not deliberate on extremely pertinent issue, with wide ramifications. In the last one month, the entire country is fixated with the two cases that are currently being heard in the Court, with each hearing revealing huge exposes on misuse of public office, collapse of institutional checks and balances, and a government out to destroy all institutions. As we know, the cases pertain to the Rafale deal, and the illegal removal of Alok Verma as the director of CBI in October, 2018.
With respect to the Rafale deal, the Court was hearing a batch of petitions filed by Advocate M.L. Sharma, AAP MP from Rajya Sabha, Sanjay Singh, and Yashwant Sinha, wherein the Court had directed the Government on 31st October to disclose the details of the steps in the decision-making process leading to the award of 36 Rafale fighter jets, along with details regarding the induction of Indian offset partner, which could be disclosed in public. While the Government filed an undated and unsigned note mentioning the decision-making process, without any affidavit stating who had authorised the filing of this note, the Petitioners alleged that the note itself contained false information and was misleading in many ways.
It was argued that though the new deal was announced by the Prime Minister Narendra Modi when he met the French Presidentin April, 2015, the said deal was retrospectively approved only in March, 2016. In fact, all the approvals were taken for the original deal of buying 126 jets between Dassault and HAL (Hindustan Aeroneutical Limited), with 108 being domestically manufactured by HAL, and transfer of technology. But when the deal was unilaterally changed to buying only 36 jets, not a single procedural approval was taken, in complete violation of the defence procurement procedure ought to be followed for all defence purchases.
Most importantly, the Government admitted in the hearing that no ‘sovereign guarantee’ had been provided by the Government of France, which basically refers to the guarantee of a government to discharge the liability of a third party, in case of default, but only a ‘letter of comfort’, which has no legal validity or protection. Even the seat of arbitration is in Geneva, and not in India.
After hearing arguments for the whole day, Chief Justice Ranjan Gogoi reserved the verdict on 14th November, 2018, albeit without issuing even a notice in the petition.[Yashwant Sinha vs Central Bureau Of Investigation Through Its Director, Writ Petition (Criminal) No. 238 of 2018]
In terms of Alok Verma case, the case has taken a curious turn. On 16th November, 2018, the Supreme Court directed the Central Vigilance Commission to furnish a copy of the report submitted by them, under the supervision of Retd. Justice A K Patnaik, to Alok Verma for his response. Both the report and its response would be given in sealed covers. However, on 20th November, 2018, when the matter came up again, the Chief Justice was angry that Verma’s responses were leaked to the media, and he adjourned the case. Meanwhile, M.K. Sinha, Deputy Inspector General, CBI filed an explosive application in the Supreme Court seeking to intervene in Alok Verma’s case, and to bring to light complete corruption at the highest levels of the government. As per Sinha’s allegations, a Minister in the current government was paid a huge bribe worth of crores to interfere with the investigation in Moin Qureshi’s case, while a search conducted by CBI was arbitrarily stopped by NSA, Ajit Doval. These are startling allegations, requiring a court monitored investigation.
These two cases are symptomatic of the larger issue of institutional collapse and widespread misgovernance in all areas under the current regime. Neither Rafale nor Alok Verma’s cases would have come to the Supreme Court, if there was a possibility of a fair investigation in both. In fact, both are intricately connected, since it is said that Alok Verma was illegally removed in the midnight of 23rd October, 2018 by the Government on the basis that he wanted to investigate the allegations of corruption in the Rafale deal, which was personally supervised by the Prime Minister, and most of the corruption allegations are against the Prime Minister himself.
Some critics argue that allegations of corruption have to be proved in trial, which cannot be done in the Supreme Court, but the issue is what does one do, if even a minimum investigation cannot be done in Rafale, without the removal of the CBI Director, who is statutorily protected? Since the alleged offences pertain to the Prevention of Corruption Act, 1988, only the CBI is empowered to investigate, and that is why the complaint of corruption in Rafale was made by Prashant Bhushan and Arun Shourie to the CBI Director Verma.
It is an established principle of law that justice is not only to be done but also seen to be done. When there are allegations against the local police and State administration, then it is in public interest that the case is investigated by an independent agency. Since the CBI is now evidently compromised, with the allegations being made against the PMO, and the Prime Minister himself, there is no recourse left, but to ask for a Special Investigation Team, to be monitored by the Court. But the question still remains about the fairness of the investigation, when the entire government machinery is out to derail the same. And this is where the role of Supreme Court becomes so critical.
With Rafale being alleged as one of the biggest corruption scandels in India, the fairness of the investigation has to be ensured. The fact that the Court did not even issue notice to the Government, while hearing the Rafale case, is a cause for concern, but one hopes that there is no repeat of Judge Loya case here. The entire country is looking at the Supreme Court and remembering the words of Retd. Justice Chelameswar at the famous 12th January, 2018 Press conference, “democracy is in peril”. We hope that the Supreme Court delivers, and most importantly, Chief Justice Gogoi delivers. (IPA Service)
The writer is a Delhi based Advocate.
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