SC reserves verdict on pleas seeking probe into Rafale deal 

The Supreme Court on Wednesday, November 14, reserved its order on a number of petitions seeking a court-monitored probe in the procurement of 36 Rafale jets from France after a three-hour hearing.

A bench comprising Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph concluded the arguments advanced by various parties which have also sought registration of FIR in connection with the alleged irregularities in the deal.

Earlier, during the hearing, the Centre admitted that there was no sovereign guarantee from the French government for the Rafale deal if the deal goes awry.

Justice K M Joseph asked the Attorney General as to how the Prime Minister could announce the new deal in April 2015, when the Request For Proposal(RFP) of the earlier deal was still in force. While the AG was attempting to answer the query, CJI Gogoi interjected and invited the attention of the AG to the submissions in the written note handed over by government. “Your own note says that the withdrawal process had begun in March 2015 and ended in June 2015”, the CJI said.

The apex court, which began its hearing on pleas seeking a court-monitored probe into the procurement of 36 Rafale fighter jets from France, also said it was dealing with the requirements of the Air Force and would like to hear from an Air Force officer and "not the official of the Defence Ministry".

"The decision we need to take is whether to bring the fact on pricing in public domain or not," a bench headed by Chief Justice Ranjan Gogoi said.

The Centre, through its Attorney General KK Venugopal, questioned if the Court was competent to judicially review the Rafale deal. Venugopal added that the "matter is for experts to decide on, not the court".

The bench, also comprising Justices SK Kaul and KM Joseph, told Venugopal that there is no question of any debate on pricing without making the facts public. The bench clarified that any discussion on price will be considered if it thinks the issue should enter the public domain.

The top court also sought the assistance of an Air Force officer on the issue.

"We are dealing with the requirements of the Air Force and would like to ask an Air Force officer on Rafale jets. We want to hear from an Air force officer and not the official of the Defence Ministry on the issue," the bench said when the attorney general began his arguments on behalf of the Centre in the pre-lunch session.

In his arguments, Venugopal defended the secrecy clause relating to the pricing of the Rafale jets, saying adversaries may get an advantage if the entire details are disclosed. Refusing to divulge details on the pricing aspect, he said he would not be able to assist the court further on the pricing issue.

"I decided not to peruse it myself as in a case of any leak, my office would be held responsible," Venugopal said.

The bench then told him there is no question of any debate on pricing without making the facts public.

Venugopal said these matters are for experts to deal with. "We have been saying that even Parliament has not been told about the complete cost of the jets," he said.

At the exchange rate of November 2016, the cost of a bare fighter jet was Rs 670 crore, he said.

India signed an agreement with France for the purchase of 36 Rafale fighter aircraft in a fly-away condition as part of the upgrading process of Indian Air Force equipment. The estimated cost of the deal is ₹58,000 crore.

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

Venugopal said the earlier jets were not intended to be loaded with the requisite weapons system and the government had reservations as it did not want to violate the Inter Government Agreement (IGA) and the secrecy clause.

The hearing saw Venugopal opposing advocate Prashant Bhushan who wanted to submit information on the secrecy clause of the Rafale agreement.

"Secrecy agreement has to be secret and how is he producing it in court?" Venugopal asked when Bhushan raised the issue.

Bhushan, appearing on behalf of himself and former Union ministers Yashwant Sinha and Arun Shourie, alleged that the government was hiding behind the secrecy clause and had not disclosed the price of the fighter jets.

The CJI told Bhushan, "We are giving you full hearing. Use this opportunity carefully and cite only those things which are necessary." Bhushan said the price per aircraft was 155 million Euros and was now 270 million Euros. This shows that there was hike of 40 per cent in its price, the advocate said.

He said the CBI was bound to register an FIR in this case.

The lawyer alleged that there was a conspiracy with French company Dassault, which granted the offset right to Reliance Defence.

He said Reliance had no competence in executing the offset contract.

Bhushan said they filed the petition after the CBI did not register the FIR under the Prevention of Corruption Act.

He also quoted former French president François Hollande and other Dassault officials to impute criminal motives in granting the offset contract to Reliance.

The activist-lawyer submitted that the NDA government had "short circuited" the acquisition process by taking the IGA route.

He said there was no sovereign guarantee from the French government in the deal and argued that the Union Law ministry initially flagged the issue and later gave in to the proposal of entering into an IGA.

Six foreign companies had applied and two firms were shortlisted during the earlier process, Bhushan said.

Later, the deal went to Dassault and state-owned Hindustan Aeronautics Ltd was part of it. Suddenly, however, a statement was issued which said there will be no technology transfer, and only 36 jets would be procured, the lawyer told the court.

Bhushan submitted that nobody knows about the alleged change in the deal done by the prime minister. Even the defence minister was not aware about the change, he said.

Advocates M L Sharma, Vineet Dhanda and AAP MP Sanjay Singh, also advanced their arguments.

Reliance in previous statements has said the Indian government, French government, Dassault and Reliance have clarified on multiple occasions there was no offset contract for ₹30,000 crore to Reliance as alleged by the Congress.