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What is the Supreme Court verdict in Rafale deal case all about?

December 22, 2018 08:23 pm | Updated February 09, 2019 10:31 am IST

What is it?

The Supreme Court’s December 14 judgment declining to intervene in the Rafale deal may have erred in English grammar to “misinterpret” what the government actually said in a confidential note on pricing details. Or, as the Opposition says, it may have been an outcome of half-truths presented by the government. The Congress says the government misled the court. The government asked the court to “correct” its judgment. Its eight-page application is an explanation of the purported intent of the English tenses used in the confidential note. But experts say the judgment is poor in details. The court seems to have let the government hold the rudder. Prime Minister Narendra Modi was a respondent-in-person in the case.

How did it come about?

The controversy boils down to two lines in paragraph 25 of the judgment pronounced by a three-judge Bench, led by Chief Justice of India Ranjan Gogoi. The first line says “the pricing details have, however, been shared with the Comptroller and Auditor-General (CAG), and the report of the CAG has been examined by the Public Accounts Committee (PAC).” The second line is: “Only a redacted portion of the report was placed before Parliament and is in public domain.” The judgment gives the impression that the CAG report was placed before the PAC. In its correction application, the government clarified that the lines in the judgment were an erroneous reproduction of the ones used in the note. The lines in the sealed cover note were “the government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before Parliament and in public domain.” The government said the note only stated “procedure,” which is that once the CAG report is ready, it would be placed before the PAC. Further, a redacted portion of the CAG report is placed in Parliament and in the public domain for national security. It said the court translated a simple “is” to a much complicated “was”.

Why does it matter?

The judgment came on four petitions questioning the decision-making process in the purchase of 36 Rafale fighter jets in a fly-away condition. They sought transparency in the price and a CBI/SIT probe. The petitioners, including former Union Ministers Yashwant Sinha and Arun Shourie and senior lawyer Prashant Bhushan, alleged that a “novice,” Reliance Defence, was chosen as the Indian Offset Partner (IOP) in the multi-crore deal. The petitions came in the immediate backdrop of former French President Francois Hollande’s remarks in an interview that France was not given much of a choice by India in an IOP. They claimed that on the previous deal for 126 Rafale jets, Hindustan Aeronautics Limited was suddenly jettisoned when the “intent” to purchase 36 jets was announced on April 10, 2015, during Mr. Modi’s visit to Paris. Second, the government has no role in the Rafale manufacturer Dassault Aviation’s choice of an IOP, thanks to an amendment in the offset policy, which allows “no offset obligations” for the first three years of a contract. Third, the Cabinet Committee on Security, the highest clearance body for defence purchases, approved the signing of the Inter-Government Agreement (IGA) for the procurement of the 36 jets only on August 24, 2016. That is, well over a year after the Indo-French joint statement of April 10, 2015.

What lies ahead?

The verdict concluded the allegations were mere “individual perceptions.” The court refused to go into a “fishing enquiry.” It ruled out any evidence of “commercial favouritism” towards Reliance Defence as India had no role in choosing an IOP. It said the petitions were “taking advantage” of Mr. Hollande’s statements. The judgment, authored by Chief Justice Gogoi, said there were no doubts about the suitability of the Rafale jets. The petitioners may file a review petition, which will go before the same Bench. The correction application may come up for an open court hearing in January.

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