Who is looking for a ‘roving enquiry’?

In a statement issued by former Union ministers Arun Shourie and Yashwant Sinha, and lawyer and activist Prashant Bhushan on the day the Supreme Court dismissed a batch of petitions related to Rafale deal, the trio, who had filed a joint petition which was one of the four petitions before the court, expressed their shock and disappointment at the Rafale judgment by the Supreme Court.

They had not sought cancellation of the deal, the statement points out, but had prayed for an inquiry. They had asked for a court-monitored probe because of the ongoing crisis within the Central Bureau of Investigation (CBI).

But the court, they lamented, took no notice of their petition and the points raised by them. While the statement is silent on whether the petitioners would file a Review Petition in the Supreme Court, lawyer activist Prashant Bhushan indicated that the option was being considered.

Excerpts from the statement:

Where did the court draw its facts from?

• We sought a court-monitored investigation (when the CBI did not register an FIR on our complaint which is mandatory as per law).

• The court’s judgment does not even address the documented facts stated in our petition or even deal with our main prayer seeking an investigation. On the contrary, it proceeds on the basis that we were challenging the contract itself and uses the facts stated by the government, either in the short open affidavit filed, or perhaps facts claimed in the sealed cover handed only to the court which was never shared with us.

• Some of the facts mentioned in the court judgment are not only not on record but are patently incorrect.

Where’s the CAG report?

• The court mentions in para 25 that “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament, and is in public domain”.

• All the facts mentioned above are neither on record nor factually correct. The CAG report has not been submitted to the Public Accounts Committee and no portion of the CAG report has been placed before Parliament or placed in the public domain. Obviously, this factually incorrect statement must be based on some communication (not on record and unknown to us) made by the government to the court.

Factually incorrect

• That the court has relied on such communication which is factually incorrect on three counts shows how dangerous it is for the court to rely on statements made in a sealed cover (not subject to scrutiny or verification) and give its judgement on that basis.

• The court has also mentioned in the same para that the Chief of the Indian Air Force had communicated his reservation regarding the disclosure of the pricing details which would adversely affect national security. This alleged fact was also not on record and it is not understood as to where and how the court got this.

• The court has also mentioned that Air Force officials were examined by the court on the acquisition process and pricing. This is also factually incorrect as the only question asked of the Air Force officials by the court and the only questions they answered was about whether the Rafale aircraft belonged to the 3rd, 4th and 5th generation and when the last acquisition took place. They were neither questioned, nor did they say anything on the acquisition process or on pricing. At least this did not happen during court proceedings.

• On the acquisition process, the court obligingly accepts the government claim that the acquisition process in the earlier 126 aircraft deal got stuck and was not proceeding which is why the new deal of 36 aircrafts had to be made. The court does not even deal with the facts mentioned by us completely shredding this claim of the government where we had annexed a video of the CEO of Dassault of 25th March 2015 saying that the negotiations was 95% complete and the deal would be inked soon. He had also said that Dassault would remain complaint to the RFP and that they were happy and satisfied with HAL.

Violation of procurement procedures

• The Court also does not deal with the specific issue of violation of the procurement procedure raised by us, that the PM signed the 36 aircraft deal with the French government on 10th April, before any requirement given by the Air Force for 36 aircraft and before DAC (defence acquisition council) okaying the need to buy 36 aircraft without any transfer of technology or make in India.

• The fact as we showed is, that no procedure was followed. The Prime Minister unilaterally announced a new deal and the CCS (cabinet committee on security) rubber-stamped these with retrospective effect. The court takes a dangerous step: in condoning the total disregard of procedures, the court cites clause 75 which says “any deviation from the prescribed procedure will be put up to DAC through DPP (defence procurement procedure) for approval”. Were this to become the norm for subsequent judicial examination, wrong-doers in control of governments would have a carte blanche. They could do what they want — as the PM did in this instance — and then have it retrospectively rubber-stamped by DAC etc.

On the issue of pricing

• On the issue of price…the Court does not even advert to or deal with the facts disclosed by us about the sudden increase of the benchmark price from 5.2 billion to 8.2 billion Euros, despite the objections of three relevant official experts in the price negotiating committee who were subsequently transferred out. It however curiously mentions a CAG report on this issue which fact was never stated and is nonexistent.

On offset contract

• On the issue of offset contracts to Ambani’s company, the court says that this was to be decided by Dassault which was already in negotiation with Reliance since 2012. This despite the fact that the Reliance company, with which Dassault was once discussing, was a completely different company of Mukesh Ambani and had nothing to do with the new company of Anil Ambani incorporated at the time of the 2015 deal.

Shocked and disappointed

• It (the court) says that “perception of individuals cannot be the basis of a fishing and roving enquiry by the court”. The court overlooks the fact that we were not seeking any enquiry by the court but only an independent investigation by the CBI or SIT….

• The allegations in the complaint by us were of huge commissions being given to (Anil) Ambani’s company through the guise of offset contracts in a deal which was contrived to ensure that such commission would be paid. (Anil Ambani on Friday welcomed the judgment and described the allegations as “wild, baseless and politically motivated”.)

• … It is in these circumstances that we say that we are shocked and disappointed by the court’s judgment. This judgment can by no means be considered to be the Supreme Court’s clean chit to this deal. As mentioned in our complaint, all the facts and circumstances, show that this was an unholy deal which has compromised national security, plundered our public exchequer and will bleed our public sector defence company HAL. This contrived deal has been struck only for the purpose of giving large commissions to Anil Ambani’s company in the guise of offset contracts.

• The issue will continue to agitate the public mind until there is full public disclosure of all the facts and a comprehensive and independent investigation into the deal.