A possible misinterpretation of a sentence by the Supreme Court in material submitted to it has led to a massive controversy in the Rafale fighter jet case. On Friday, a Supreme Court bench led by Chief Justice Ranjan Gogoi refused to order an investigation into India’s deal with France to buy 36 Rafale jets, making it clear that it was satisfied with the Centre’s statements.

Critics have accused the government of overpaying for the fighter aircraft and also allege that the deal has benefitted businessman Anil Ambani.

Within hours of the judgement, Congress president Rahul Gadhi criticised the Centre for misleading the court about some facts. The judgement mentioned a report on Rafale by the Comptroller and Auditor General of India and claimed that it was being assessed by the Public Accounts Committee of the Parliament. This created this furor, with PAC chairman Mallikarjuna Kharge claiming that such a report does not exist.

On Saturday, the Centre moved an application seeking correction of the statement made by the court on the CAG report.

Correcting, and even recalling, orders is nothing new to the judiciary. Keeping in mind the complexity of the judicial process, the law has provided powers to the courts to make small changes to its orders, for the sake of ensuring justice. However, what happens when the error strikes at the very root of the judgement itself and is capable of changing the outcome of the order? Is the mistake on the CAG report in the Rafale judgement such an error?

Significant and minor errors

According to former Madras High Court judge K Chandru, the Supreme Court will have to decide whether the error pointed out by the Centre is a minor one or if it could change the very nature of the judgement.

Justice Chandru said if it was minor error, the court could issue a correction and close the matter. But if it is a major error affecting the judgement, the court will have to recall the order and reassess its judgement in light of the new fact.

A reading of the Rafale judgement shows that the CAG report is at best incidental to the conclusion drawn. The court is merely pointing to the CAG report in passing. In fact, the court made it clear that it will not go into the pricing element. The court said:

“Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircrafts. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package. It is certainly not the job of this 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.”

Given this observation, unless the parties are able to prove that the government misled the court on facts, it is difficult to see the bench recalling its order for what is a minor error of judgement.

Power to correct

The power of civil courts to correct their final orders flows from the Civil Procedure Code. Section 151 and 152 of the Code bestow on courts these powers in the interest of justice. While 151 explains the inherent powers of the courts to pass any order in the interest of achieving justice, Section 152 expressly allows for minor corrections. The Section reads thus:

“Amendment of judgements, decrees or orders:- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

While this applies to the civil courts, the Supreme Court also has inherent powers under Article 142 of the Constitution to recall and correct its orders in the interest of justice. How does this order work procedurally?

A case ends with the pronouncement of the judgement and signing of the orders by the judges. Rules mandate that no correction can be made to the judgement without following established procedures once it is signed.

There are two modes to this procedure. The court can suo motu recall an order if it feels there is an error apparent on the face of the record. Once an order is recalled, the case is restored in the file and the court can call for fresh hearing if necessary.

The second method is for the parties involved in the case to move a miscellaneous application seeking a correction. There are many recent examples of the court recalling its own orders, either because there was a factual mistake or because it felt the ruling was incorrect.

In July, the Supreme Court recalled an order of death sentence after it was informed that the accused had died before the order could be executed. There are also instances where a different bench has recalled the order of a smaller bench. In November, a three-judge bench headed by former Chief Justice Dipak Misra recalled the order of a two-judge bench which wanted to examine the question of finalising memorandum of procedures for judges appointments.

In 2016, the Supreme Court recalled an order awarding promotions to Scheduled Caste and Scheduled Tribe government employees in higher grade positions.

Perhaps the most significant of recent cases where the Supreme Court recalled its order was in a matter involving the Right to Information Act. In 2013, the court withdrew its order after recognising a serious mistake of law when it ordered that only sitting and retired judges could become state information commissioners.

There also instances where courts have not recalled orders despite apparent major errors. In May, 2015, the Karnataka High Court made significant arithmetic mistakes that led to acquittal of former Tamil Nadu Chief Minister Jayalalithaa in a disproportionate assets case. The Supreme Court later overturned this verdict in 2017 and convicted the accused. But by this time, Jayalalithaa was dead. However, this was a criminal case where amending orders is not as straightforward as in a civil case given that the outcome could severely affect the liberty of the accused.

In the Rafale judgement, the Centre has moved an application for correction. In the original judgement, the court, referring to the CAG report, made the following observations:

“The pricing details have, however, been shared with Comptroller and Auditor

General [hereinafter referred to as “CAG”], and the report of the CAG has been

examined by the Public Accounts Committee [hereinafter referred to as “PAC”]. Only a redacted portion of the report was placed before the Parliament and is in public domain.”

This comment was made based on material submitted by the Centre in a sealed cover. The Opposition has cited this comment and has accused the Centre of misleading the court as no such CAG report exists.

In the application moved on Saturday, the Centre made the following submissions:

“That it would be noted that what has already been done is described by words in the past tense, i.e. the Government “has already shared” the price details with the CAG. This is in the past tense and is factually correct. The second part of the sentence, in regard to the PAC, is to the effect that “the report of the CAG is examined by the PAC”. However, in the judgment, the reference to the word “is” has been replaced with the words “has been”, and the sentence in the judgment (with regard to the PAC) reads “the report of the CAG has been examined by the Public Accounts Committee”.”

Essentially, the Centre has contended that it was merely explaining the procedure of how the CAG report will be dealt with in Parliament, something that has been misread by the court as having happened already.

However, the question of how three judges missed this misinterpretation remains. A major problem with the Rafale proceedings was that much of the information cited in the judgement were provided in a sealed cover.

Had the court not insisted on a sealed cover, the question of the CAG report would have emerged during the course of the arguments, providing an oppurtunity for both the Centre and the petitioners to clarify. This would have helped avoid this embarrassing controversy that has now dragged the court into a political battle.