SC reserves order on pleas seeking Rafale probe after marathon hearing

Bhushan contended that none of the three conditions for an IGA purchase, specified in the DPP-2013 that governs the Rafale contract, was met

In the Supreme Court (SC) on Wednesday, a three-judge bench comprising Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph spent over four hours hearing a group of petitions filed against the government’s purchase of 36 Rafale fighters for Euro 7.85 billion (over Rs 600 billion) in September 2016. 

Former Union ministers Yashwant Sinha and Arun Shourie and lawyer-activist Prashant Bhushan, who have jointly filed a petition in the matter, demanded that the Central Bureau of Investigation (CBI) be ordered to register a First Information Report (FIR) and investigate “criminal misconduct by high-ranking public servants” in cancelling the ongoing tender for 126 Rafale fighters and instead buying 36 fighters at an allegedly inflated price. Other petitioners include Manohar Lal Sharma and Aam Aadmi Party legislator Sanjay Singh.

The petitions also alleged that Euro 3.9 billion (Rs 317 billion) worth of offsets that arose from this contract were improperly awarded, much of it to Anil Ambani’s Reliance Group.

At the culmination of daylong arguments, the bench announced that the hearing was concluded, and reserved its judgment in the cases. 

The petitioners’ verbal arguments in court on Wednesday centred on the government’s written response to the petitions, which it had submitted on Monday in accordance with the SC’s order on October 31. In response, the petitioners submitted their written arguments on Wednesday morning.

The government’s submission had three parts. The first part addressed the decision-making that led to the contract with French firm Dassault for 36 Rafales. The second part explained the process followed for the award of offsets. Both these were shared with the petitioners, in accordance with the SC order. The third part pertained to the contract price, which the government submitted in a sealed cover to the court, citing secrecy.

Attorney General KK Venugopal claimed that even he had not looked at the Rafale pricing. “I decided not to peruse it myself as in the case of any leak, my office would be held responsible,” he said.
 

Venugopal also told the apex court that the court is judicially not competent to decide what aircraft and weapons are to be bought as it is a matter for experts, reported PTI.

In his arguments, Prashant Bhushan challenged the government’s assertion that the 36-Rafale contract did not follow the standard procurement process because New Delhi had signed an Inter-Government Agreement (IGA) with Paris due to “geostrategic advantages that are likely to accrue to the country”. 

Bhushan contended that none of the three conditions for an IGA purchase, specified in the Defence Procurement Procedure of 2013 (DPP-2013) that governs the Rafale contract, was met. The first condition allows an IGA when “equipment of proven technology and capabilities… is identified by our armed Forces while participating in joint international exercises.” A second condition permits an IGA “when a very large value weapon system/platform which was in service in a friendly foreign country is available… normally at a much lesser cost than the cost of the original platform/weapon.” The third condition is when the seller country “might have imposed restriction on [a weapon’s] sale and thus the equipment cannot be evaluated.” Next, Bhushan pointed out that the law ministry had flagged two objectionable issues with the 36-Rafale contract document that was referred to it. First, the French government refused to provide sovereign guarantees that it would back the contract through the lifetime of the Rafale fighter.