Media outlets are claiming that the Supreme Court apparently relied on an allegedly non-existent report in its Rafale deal judgment [para 25]. According to these reports, either
(i) the Auditor General’s (CAG’s) report does not exist at all, or
(ii) it might exist, but was never placed before the Public Accounts Committee (PAC).
If either of these statements is true, the Supreme Court’s claim to the contrary in its Rafale judgment means that one of the following four possibilities MUST also be true:
1. One of the parties lied to the court on record (whose veracity would have been sworn to on affidavit), making the false claim. This is most likely to be the party who would benefit from making this claim, ie the government. If the government did do so, it would amount to contempt of court and of Parliament.
2. No party made the claim in any case document, but one of them (again, most likely the government) *supplied* the false information to the court by other means. Any such approach by a party to a judge in relation to a pending case outside the open court is, in itself, a very serious attempt to breach judicial integrity and independence, and would amount to contempt. The fact that the approach was made to feed false information is an additional and also serious offence. If the judge who was approached failed to disclose the approach to a relevant authority, that would implicate the concerned judge as well.
3. The claim wasn’t supplied by any litigant, but the court took ‘judicial notice’ of a ‘fact’. Judicial notice of well known facts is permissible, but this seems to not be a fact at all (and one whose veracity is not open to subjective interpretation or perception). So, in the very least, the judges need to disclose the documentary basis on which they came to believe in this claim–perhaps by showing a media report which erroneously made it. Public reasons is the only institutional check on the judiciary, and they owe the people this explanation.
4. The final possibility is too outrageous to contemplate–that the court simply made up the claim out of thin air to buttress its judgment. This is as serious a judicial misconduct as any.
Whichever of these possibilities is true, the case obviously needs to be reopened.
