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Rafale Controversy: Supreme Court Judgement Amongst Worst Ever?

Sukla Sen

Judgement Sparks Controversy
The judgement delivered by the Supreme Court on December 14th, has already attracted a hell lot of controversy.

Amit Shah, Rajnath Singh and Arun Jaitley, in particular, came down heavily on Rahul Gandhi and the Congress, losing no time and using the verdict as a battering ram, as was rather expected. Rahul Gandhi himself, aided by other top Congress functionaries, was no less swift in responding.

While the BJP leaders, not too unjustifiably, flaunted the judgement as a "clean chit", Gandhi underlined, in particular, supposedly a big hole in the verdict - alleged non-existence of a CAG report on the deal, the presumed existence of which constitutes one of the cornerstones on which the verdict rests, the pricing aspect, in particular.

In very brief, the judgement posited: 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”). (Ref.: Para 25.)

Mallikarjun Kharge, the current Chairman of the PAC, by Rahul's side - in the press conference (watch the subject video cited above), flatly denied the veracity of the above contention: "I spoke to the deputy CAG today and he told me no such report exists. CAG reports are referred to the PAC... if the report is not with CAG, the question of it reaching the PAC does not arise. ...," Kharge said.

That's too disturbing.

The GoI, however, under the impact of the storm of outrage spearheaded by the Congress, had to initiate a damage control move and has asked for a "correction" in the Supreme Court order resulting from misinterpretation of a note submitted in a sealed cover.

But, that may not be end of the story.In any case, at least one another factual discrepancy has also been pointed out.

In the meanwhile, Yashwant Sinha, Arun Shourie and Prashant Bhushan have jointly issued a statement refuting the BJP's claim of a "clean chit" and therein pointed out four substantive discrepancies, including the (at least) two listed out in the Congress press conference in the judgement: In fact, some of the facts mentioned in the court judgement are not only not on record but are patently incorrect.

Two Significant Factual Discrepancies
In the text that follows two other substantive discrepancies in the verdict would be gone into.

AA. The para 3 of the judgement, inter alia, states: According to the official respondents negotiation continued (after the change of government in 2014). A process of withdrawal of the Request for Proposal [RFP] in relation to the 126 MMRCA was initiated in March 2015 [emphasis added]. On 10th April, 2015 an Indo-French joint statement, for acquisition of 36 Rafale Jets in flyaway condition through an Inter-Governmental Agreement (hereinafter referred to as “IGA”), was issued and the same was duly approved by the DAC. The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015.

Thus, it has been contended that the process of withdrawal of the RFP had been initiated in March 2015 - i.e. before the public announcement of the decision to purchase (only) 36 Rafale jets instead of 126, as decided earlier, on April 10 2015.

There's no indication anywhere what document was produced in support of this contention (as contained in the para 18 of the GoI affidavit). What's however worth taking note of is that some known facts, very much available in the public domain, go to pretty well contradict that.

    I. By the very end of March, on March 25 to be precise, the Dassault CEO had expressed confidence that the deal for purchase of 126 jets, with negotiations 95% completed, would now go ahead with the HAL as the (principal) Indian partner.

    II. The Rafale aircraft has been chosen by India after a comprehensive selection process in the frame of the MMRCA competition, and exclusive negotiation is ongoing. The Rafale is the next logical step. HAL and Indian industries will contribute to the “Make in India” policy by developing and manufacturing the aircraft locally. The Rafale will fulfill all of the operational requirements of the Indian Air Force and the industrial requirements of India’s economic policy as the Mirage 2000 continues to do” declared Eric Trappier, Chairman & CEO of Dassault Aviation (on March 25, at the acceptance ceremony of the first two Indian Air Force Mirage 2000 I/TI held at Istres, in the presence of the Indian Ambassador to France, Arun K. Singh, among others).

    Also: Pitching the multi-billion deal for 126 Rafale combat jets as the "logical step" towards the 'Make in India' initiative, Dassault Aviation on Wednesday hoped that the contract which has been "95% finalised" would be signed soon.

    Even more telling is this video clip (1:09 mins.), in which Trappier reads out a prepared statement in presence of the Indian dignitaries leaving no scope for any doubt:
    <https://twitter.com/incindia/status/1043750808041320448?lang=en>. Trappier can clearly be heard saying in the video, “After an outstanding amount of work and some discussion, you can imagine my great satisfaction to hear on one hand from the Indian Air Force chief of staff that he wants a combat proven aircraft which could be the Rafale... and on the other hand from HAL chairman that we are in agreement for the responsibilities sharing, considering as well our conformity with the RFP (Request for Proposal) in order to be in line with the rules of this competition. I strongly believe that contract finalisation and signature would come very soon.”
    That was from the Dassault by the end of March 2015.

    III Now, March over, on April 8 2015, the Indian Foreign Secretary briefs the media (specifically) on the Prime Minister's impending foreign visit. A relevant extract: As I said, the Prime Minister would be leaving tomorrow. He arrives tomorrow evening in Paris. His day begins on the 10th with a ceremonial welcome in the morning. He then goes on to a roundtable. He has two back to back roundtables - one is with French CEOs with infrastructure as a theme, and the second is with French CEOs with defence technology as a theme.

    Question.Ijust wanted to know whether we could expect some progress in the negotiations on the Rafale deal during Prime Minister Modi’s visit.

    Foreign Secretary:I have three Rafale questions, one nuclear question, one CEO question and one Indian Ocean question.

    In terms of Rafale, my understanding is that there are discussions under way between the French company, our Ministry of Defence, the HAL which is involved in this. These are ongoing discussions. These are very technical, detailed discussions. We do not mix up leadership level visits with deep details of ongoing defence contracts. That is on a different track. A leadership visit usually looks at big picture issues even in the security field.

    That's the testimony from the Indian Foreign Secretary himself, briefing on the purpose of the Prime Minister's foreign trip commencing the very next day. Not the slightest hint that the process for the withdrawal of the RFP had already begun. In fact, just the opposite.

    IV Now, the Defence Minister himself, post the announcement. Watch:

<https://www.youtube.com/watch?v=2udl1EHdZ2s> (0:18 - 0:26 mins., in particular).

It was published on April 14 2015. The keyword is "probably". Also highly helpful is the somewhat fumbling way it was delivered.

Never mind.

There's just no talk of any withdrawal of the RFP.

The Defence Minister is, visibly, caught off-guard by the surprise announcement.
And, it's no rocket science that the process of withdrawal of the RFP cannot be launched without the Defence Ministry initiating the process.

Inference
Hence, the assumption made by the Supreme Court, as cited above, is very much in conflict with the facts available in the public domain.

Not in sealed cover.

What is also relevant here is that the portions of the affidavit filed by the GoI before the Supreme Court, which were made available to the petitioners, offer not the faintest hint how the magic figure of 36, drastically cutting down from 126 - arrived at the conclusion of a lengthy and, understandably, arduous, procedure was, in the very first place, had been arrived at.

All that is available is about how the figure of 36 would get regularised post facto.

The net gain of the case filed in the Supreme Court appears to be the official admission by the regime, even if only implicit, that the figure of 36, to be announced by Modi on April 10 2015 in Paris, was arrived at completely arbitrarily. And, the relevant circumstantial evidences further underline that other than the Prime Minister no part of the legitimate official machinery had been involved.

Two things, in particular, emerge from the above.

I The Supreme Court has, apparently, taken a fleeting mention of a date, in the GoI affidavit, clearly in conflict with known facts, as a gospel truth, without any application of mind.

II The very substantive question issue of how the all-important figure of 36 had been worked out by the Prime Minister in the run-up to his surprise announcement on April 10 2015 has been summarily brushed aside in the following words: We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126. We cannot possibly compel the Government to go in for purchase of 126 aircraft. This is despite the fact that even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircrafts.

This completely ignores the aspect if the figure of 126, originally envisaged following the due procedure, has been drastically cut down to only 36 in a completely irregular and arbitrary fashion, then what's the motive behind?

In that event, it'd definitely call for investigations. The issue is central to the whole controversy.

BB. The para 4 of the said judgement further posits: Things remained quiet [since April 10 2015?] until sometime in the month of September, 2018 when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India. This seems to have triggered of [sic] the writ petitions under consideration.

The para 23 reiterates: We may also note that the process was concluded for 36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing was called into question, then. [Emphasis added.] It is only taking advantage of the statement by the ex-President of France, Francois Hollande that these set of petitions have been filed, not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decision-making process and pricing. We do not consider it necessary to dwell further into this issue or to seek clause by clause compliances.

This conclusion drawn by the Court is even more glaringly in conflict with the known relevant facts.

  1. On July 21 2018, a no-confidence motion was debated in the lower house of the parliament.

The Rafale issue was just not only raised it was, arguably, the very centre-piece of the submission made by the national president of the main opposition party, Congress, in support of the motion:
Congress President Rahul Gandhi accused the government of "lying" to the nation on the issue of sharing details of the Rafale jet deal which was rejected strongly by Prime Minister Narendra Modi calling the charges "distortion of truth".

That was two months before the Hollande disclosure.

Clearly shows how “quiet” the things had been before the disclosure.

  1. Now, two years before the “disclosure”: Raising several questions over the Rs 59,000-crore Rafale fighter jet deal, Congress today said the absence of any provision of technology transfer would cost India "very heavily". Former Defence Minister A K Antony also demanded making public the inter­governmental agreement with France. He wondered how India would bridge the gap with respect to China and Pakistan by acquiring just 36 aircraft when the original plan was for 126. Addressing a press conference along with party spokesman Manish Tewari at the AICC headquarters, Antony lamented that the idea of 'Make in India' which was there in the original plan has also "gone" in the present deal. "During UPA, we had planned to buy 126 aircraft to strengthen IAF which was its urgent operational requirement considering security situation in the country," Antony said wondering why only 36 aircraft were being bought.

 

"Is it enough to meet operational requirement of the IAF which has a sanctioned strength of 42 squadrons and.... at present there are just 32 squadrons?", Antony asked. A squadron has generally 18 aircraft. Suggesting that more aircraft were necessary for the operational requirement of the IAF, he said, otherwise, by 2022 the squadron available with IAF would be reduced to 25. "I don't want to comment on the present price before I know the exact details. Government must publish the details of the final contract," Antony said.

This was the very day following the signing of the Inter-Governmental Agreement for the purchase of 36 Rafale jets.

A section of the Indian media had, however, started flagging various issues well before that, since soon after the announcement in Paris.

In any case, since the Congress press conference led by the former Defence Minister, A K Antony, immediately after the signing of the IGA, the debate would keep hotting up, as is captured by Rahul Gandhi’s no-confidence motion speech.

So much so that the visibly enraged (subsequent) Defence Minister would publicly announce the Government’s brusque refusal to engage with the Opposition on the issue: Defence minister Nirmala Sitharaman has ruled out any engagement with the opposition on issues relating to the multi-billion dollar Rafale fighter jet deal, saying they do not deserve to be involved after throwing muck on a very sensitive issue concerning India's defence preparedness.

Inference
So, the subject observations made by the Supreme Court, as cited above (extracted from para 4 & 23), are completely at variance with actual facts, which are just not available in the public domain, but all too well-known.

CC. Towards the very end, in para 32 - there’re in all 34, the matter is again brought up as under:
There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter.

Apart from the fact that the claim17 made by Hollande grievously affects the “every side” that has denied its veracity and thereby, too obviously, these denials just cannot be taken at their face value without due verifications, it’s quite evident that the premise, as laid out in the judgement, that the controversy regarding the deal was triggered solely by the Hollande disclosure has been used as a major ground for rejecting the petitions demanding an enquiry.

Inference
As has been made out above, this premise, one of the major determinants of the final decision, is just flagrantly flawed. That, evidently, makes the final decision highly questionable.

Final Conclusion
While interpretation of a law or analysis of a situation, as given out in a judgement, is open to questioning as a matter of routine, citation of “facts” in a judgement, as the basis of the final conclusion, must be above all controversies. From that point of view, the subject judgement - shot with a number of flawed assertions, delivered by the highest court of India - that too by a bench headed by the honourable CJI himself, appears to be only too worrisome. Its implications are too disturbing.

The only redeeming aspect is that the judgement appears to be so very flawed - pretty visibly, it’s not too likely to be able to decisively reshape Indian public opinion in this regard. It may even do just the opposite by refuelling the controversy.

https: //doc s. google .com/document/d/e/2PACX- 1vT-
NSOUZ3zob3gXrbNu_LGYx9KeWWf_YcnjlkArJmE76ub_194tUPSTNVkiucV8Eeb20T- 07d8J1Q6b/pub has references.

Source: INSAF Bulletin, 201, January 2019

Frontier
Jan 3, 2018


Sukla Sen [email protected]

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