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Rafale deal: Supreme Court seeks affidavit as Centre objects to sharing pricing/cost of 36 jets

Senior lawyer Prashant Bhushan, former Union Minister Arun Shourie and AAP Rajya Sabha member Sanjay Singh after the hearing on the Rafale deal at the Supreme Court in New Delhi on October 31, 2018.   | Photo Credit: R V Moorthy

The Union government on Wednesday raised objections to sharing the pricing/cost of 36 Rafale fighter jets with the Supreme Court in a sealed cover, saying it was not divulged even to the parliament.

Chief Justice of India Ranjan Gogoi, heading 3-judge bench, told Attorney-General K.K. Venugopal to file an affidavit spelling out the government's objections to disclosing the price fixed for procuring the 36 aircraft from France's Dassault company.

"Please file an affidavit saying why your are not sharing... if you have any difficulty, say so. We will hear that," Chief Justice Gogoi told Mr. Venugopal.

The government protested after the court recorded in its order that it "would also like to be apprised of the details with regard to the pricing/cost and advantages, if any".

Later, one of the petitioners, Rajya Sabha MP Sanjay Singh, said the price of the aircraft should be disclosed.

"Do you know the price?" Chief Justice Gogoi asked him.

When Mr. Singh replied in the affirmative, the Chief Justice said: "You keep it to yourself... you are one of the fortunates who know the price".

Besides Mr. Singh, the petitioners include former union ministers Yashwant Sinha, Arun Shourie — who were at the court, advocates Prashant Bhushan and M.L. Sharma — who had filed the first petition in the apex court against the Rafale deal.

The petitions, the court pointed out, have not raised questions about the "suitability" of the Rafale fighter jets or its "utility to the Indian Air Force".

"What has been questioned is the bonafide-ness of the decision-making process and the price/cost of the equipment for which the same has been procured," the Chief Justice explained the ambit of the various petitions in  the court's order.

The Bench, also comprising Justices U.U. Lalit and K.M. Joseph, said it has perused the note/report given to the court in a sealed cover by the government, detailing the various stages of the decision-making process leading to the award of the 36 fighter jets.

'Put details in public domain'

The court ordered the government to share with petitioners and parties such information contained in the note which could be "legitimately put out in the public domain".

Again, the Bench directed the government to make available whatever information which could be "legitimately placed in the public domain" about the induction of the Indian off-set partner, if any, in the Rafale deal.

The petitioners had raised questions about  “how a novice company viz. Reliance Defence came in picture of this highly sensitive defence deal involving Rs. 59,000 crore without having any kind of experience and expertise in making of fighter jets”. They had sought an explanation on why Hindustan Aeronautics Limited was removed from the deal.

The court clarified in its order that any information in the note which is either strategic or confidential in nature may not, at this stage, be furnished to the petitioners or parties.

Mr. Venugopal submitted that many details in the note may be hit by the Official Secrets Act and exempt from public disclosure.

"Please read our order, Mr. Attorney. We said 'whatever information which can be legitimately placed in public domain'," the Chief Justice responded.

The court gave the government 10 days to share the necessary information from its note with the petitioners. They, in turn, can filed their responses in seven days thereafter. The court fixed the hearing for November 14.
 

Court won't stop for elections: CJI

Mr. Sharma wanted the hearing to be adjourned till after the elections. He conveyed this to the Chief Justice at the very beginning of the hearing. He said "elections" were due.

"How are we concerned? When has the business of this court stopped for elections..
By the way, what elections are you talking about?" Chief Justice Gogoi asked him.

Mr. Sharma hesitatingly referred to the "Assembly elections". To this, the CJI snubbed him, saying "first you decide what elections you have in mind".

Mr. Bhushan, who jointly moved the Supreme Court with the two former ministers for a CBI probe into the Rafale deal, said he had earlier filed a complaint with the CBI. He said there was no word from the CBI about his complaint.

"For that you will have to wait, Mr. Bhushan. Let the CBI put its house in order first," the Chief Justice said.

The top judge was obliquely referring to the power feud between top CBI officials and the ongoing investigation into exiled CBI Director Alok Verma and Special Director R.K. Asthana, which has shaken the credibility of the premier agency.

The trio's petition contended that tenders were originally issued by the Ministry of Defence in 2007 for the purchase of 126 fighter aircraft. According to this deal, they contended, the Request for Proposal showed 18 of the jets would be purchased from abroad in a ‘fly-away’ condition and the remaining 108 would be manufactured in India in the factory of Hindustan Aeronautics Limited (HAL) with transfer of technology from the foreign vendor.

Six companies had applied. Dassault was declared the lowest tenderer and thereafter price negotiations began. These negotiations were at a very advanced stage (95% complete) by March 25, 2015.

“However within 15 days of this, the Prime Minister of India and the President of France announced a totally new deal jettisoning the virtually complete 126 aircraft deal and the Prime Minister on behalf of India agreed to purchase only 36 Rafale aircraft in a ‘fly-away’ condition without any transfer of technology and make in India,” the petition said.

“It later turned out that the new deal involved 50% of the value of the contract to be given as “offset contracts” to Indian companies and that the government informally told Dassault and the French government that the bulk of the offset contracts would have to be given to a company of Mr. Anil Ambani which had just been set up,” the petition said.

The petition alleged that “when the final contract was signed after price negotiations, it was transpired that the price of the aircraft had been increased to more than double to what was under consideration in the old deal of 126 aircraft”.

It said the alleged actions of the “various public servants” amount to offences under the Prevention of Corruption Act.

Mr. Singh's petition has urged the court to “restore the earlier deal for the purchase of 126 Rafale Fighter Jets which was cancelled on June 24, 2015 by the Government of India” and propose Hindustan Aeronautics Limited as the Indian offset partner of Dassault in the Rafale deal.

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