Crucial Hearing on Rafale Deal Pricing Begins in Supreme Court
The Supreme Court on Wednesday, 14 November, began a crucial hearing on the pricing details of the 36 Rafale fighter jets, days after the Centre submitted the information in a sealed cover.
A bench, comprising Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph, is hearing the matter. Petitioners, who have sought a court-monitored investigation into the Rafale deal, have made their submissions before the court.
On 12 November, the Centre had handed over a 16-page document titled “Details of the steps in the decision-making process leading to the award of 36 Rafale fighter aircraft order” to the petitioners in the case.
The government had also provided the pricing details of the Rafale jets to the top court in a sealed cover.
The petitioners are likely to respond to the contents of the documents, that say that the deal for 36 Rafale jets was negotiated on "better terms" and the Defence Procurement Procedure laid out in 2013 was "completely followed."
The Centre has maintained that the Cabinet Committee on Security’s (CCS’) approval was secured before the deal was inked with France.
The details of the decision-making process and pricing were placed in the court in compliance with its October 31 order.
Bench Re-Assembles at 2 After Lunch Break, Hearing Commences
In compliance with Supreme Court’s demand of having a word with officials from Indian Air Force (IAF), a team of Air Force officers comprising Air Marshal Alok Khosla and Air Vice Marshal J Chalapathi have reported to the Supreme Court.
CJI Gogoi asked the Air Force officials about the latest induction in the force, to which he was told, it’s Sukhoi 30, reported Bar and Bench.
Following this, CJI enquired on the generation of the proposed Rafale aircraft.
“5th generation because it has stealth technology,” an IAF officer replied.
The Attorney General has further alleged that the HAL wanted a longer time slot, 2.7 times more than what Dassault was taking.
He added that the offset partner has to be selected by the vendor, reported Bar and Bench.
CJI also asked the Attorney General which other countries have bought Rafale jet from Dassault. “Qatar, Egypt and France,” the Attorney General told the court.
On being asked whether France has given sovereign guarantee of providing the aircraft, the Attorney General clarified that while no such assurance has been given, a letter of comfort has been provided by France.
While making his submissions, the Attorney General added that the Rafale deal is a sensitive issue involving security of the country.
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Discussion on Pricing of Rafale Jets Not Needed At The Moment, Says CJI
During the hearing, the court agreed that different aspects on pricing need not be discussed now, reported Bar and Bench.
"It needs to be debated only if the Court decides that the aspects on pricing needs to come in public domain," CJI Ranjan Gogoi said, to which the Attorney General readily agreed.
AG Venugopal stated that the reason behind the government not wanting to disclose the price is due to the intergovernmental agreement. He added that the RTI Act doesn't apply as security-related matters are an exception.
“This is not a matter for judicial intervention. Since the allegations are based on media reports and rumours,” Venugopal said, reported Live Law.
“Was the price of Rafale deal disclosed in the public domain earlier?”, the CJI asked, to which the AG responded that it wasn’t.
Want to Meet Someone from Indian Air Force: CJI Gogoi
Demanding that an official from the Indian Air Force comes forth, Chief Justice Gogoi told Attorney General KK Venugopal, “We want to meet someone from the Indian Air Force, not from the ministry. After all, we are dealing with the Air Force,” reported Bar and Bench.
“He will be here soon,” replied AG KK Venugopal.
Petitioner Arun Shourie Questions 'Ill-Experienced' Reliance's Selection
“A company of the experience of Dassault which was set up in 1929 would not have chosen a company here with no experience at all,” petitioner Arun Shourie argued, reported Bar and Bench.
"“Dassault itself has been in serious financial difficulty.”" - Arun Shourie, Former Union Minister
Quoting a statement of former defence minister, Shourie said, “Mr. Manohar Parrikar was unaware of this deal.”
“The decision was taken by PM Modi without consulting the then Defence Minister Parikkar. This fact is supported by statements of Parikkar ,” Live Law reported, quoting Shourie.
#Rafale : Now Arun Shourie arguing why it was impossible that Reliance would be selected as offset partner, including its lack of experience, how one of its companies has now been taken to insolvency court. 21/n @TheQuint— Vakasha Sachdev (@VakashaS) November 14, 2018
Contrasting the government’s stand, Shourie said that Hindustan Aeronautics Limited (HAL) is fully capable to produce aircraft and rubbished statements by government that HAL is not capable.
However, the Supreme Court has declined to accept the government's Request for Proposal (RFP) for 126 aircraft from Arun Shourie who had requested for them to be put on record.
The bench said, "Can't accept it during the hearing."
Govt Hiding Behind Secrecy Agreement: Bhushan
Talking about the pricing clause and stating that the government has not disclosed the prices, Bhushan told the court, "Government is hiding behind the secrecy agreement.” However, he added that the secrecy agreement does not apply. He attempts to read out some provisions of the agreement, but is interrupted by AG KK Venugopal who protests and says this should not be allowed.
"“How does the issue of price compromise national security? If I may point out, it was disclosed twice in Parliament formally.”" - Prashant Bhushan, Senior Advocate
Bhushan argues that the price per aircraft is 40 percent more now, even though the government claims it is cheaper. He added that the pricing details submitted by government to the Supreme Court need to be accessed and cross checked.
Bhushan stated that selection of Reliance as the offset partner amounts to an undue advantage for Anil Ambani's group. He also pointed out that Dassault says it chose Reliance because it owned land, but land was only alloted after the selection was made.
Concluding his arguments, Bhushan stressed that CBI has to register an FIR as per Lalita Kumari judgment and conduct a probe. “This has not been done despite our complaint to CBI, hence we have approached this court," Bar and Bench reported, quoting Bhushan’s submission.
#Rafale : @pbhushan1 concludes. Says serious offences under Prevention of Corruption Act potentially disclosed by complaint. Therefore, following SC's Lalitha Kumari judgment, FIR should be registered, preliminary enquiry started 20/n @TheQuint— Vakasha Sachdev (@VakashaS) November 14, 2018
Senior Advocate Prashant Bhushan Files Written Response
Senior Supreme Court lawyer Prashant Bhushan, appearing for former Union minister Arun Shourie, who is also one of the petitioners in the Rafale deal case, submitted before the three-judge Apex Court that only in three situations, the intergovernmental route can be resorted to, reported ANI.
"The documents were handed over to us on Monday after noon. We have burned the midnight oil and prepared this response," Bhushan said as submitted his written response.
“How did the PM have the power to change the deal, remove the technology transfer under the Make in India and add the offset obligations?" Bhushan said as he argued that under offset guidelines, Defence Minister has to approve all offset contracts.
“The government cannot say that it does not know about the offset partner. That is against procedure,” Bhushan pointed out in his argument.
#Rafale : First, @pbhushan1 says govt response doesn't disclose that there are only very few circumstances in which a tender process can be ignored (as it was here), & an intergovernmental agreement used for a defence deal. None of these circumstances existed here 6/n @TheQuint— Vakasha Sachdev (@VakashaS) November 14, 2018
“The French government has not given any sovereign guarantee. What if Dassault is paid by the government and they don't deliver? There is no guarantee by the French government that Dassault will deliver,” Bhushan told the court.
#Rafale : After explaining in more detail how an intergovernmental agreement wasn't justified, @pbhushan1 now discusses the old deal, noting that even the old RFP required the "India-specific enhancements" that govt claims have led to price increase 7/n @TheQuint— Vakasha Sachdev (@VakashaS) November 14, 2018
Prashant Bhushan has further argued that nobody knew that the deal was being changed. “Nobody, not the DAC, not the CCS, not the Defence Ministry, knew that the deal was being changed,” Bhushan told the court.
He also used the Dassault statement to rubbish government’s claims that the old deal had to be scrapped because of troubles between Dassault and HAL.
As a result, Bhushan argued, while there remains a requirement for the offset contracts to be approved by the Defence Minister, Dassault is being allowed to select offset partners without informing the Defence Ministry erroneously.
Pricing of the Deal was Revealed in the Parliament Twice: Petitioner
Senior advocate Sanjay Hegde representing the third petitioner Sanjay Singh has submitted that pricing of the deal was revealed in the Parliament twice. Submission of Attorney General that pricing details cannot be made public is unacceptable, Hegde told the court.
There is a huge difference of price per aircraft in the revised deal, the senior advocate argued.
“The Defence Acquisition Council (DAC) assessed the need for 126 aircrafts in 2001. How did it change from 126 to 36 aircraft in 2018,” counsel for Singh argued.
Rafale Deal Hearing Commences in Supreme Court
Petitioner advocate ML Sharma told the Supreme Court that report filed by the government in the court reveals that there has been serious fraud while making the decision post May 2015.The petitioner urges Supreme Court that the matter be heard by a five-judge bench
“Negotiations between Indian and French side started in May 2015 but PM Modi announced the deal in April 2015. It’s a serious fraud,” petitioner Sharma said as he began his submission, reported Bar and Bench.
The document says deal for purchase of 36 aircraft was first announced and then negotiations were held, ML Sharma told the court. Attorney General should file reply on affidavit, Bar and Bench reported.
The statement of the Rafale jets deal between PM Modi and France President was announced in 2015 which was before the approval of cabinet committee on security (CCS).
(With inputs from PTI)
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