Thursday, 15 November 2018

Supreme Court reserves order after marathon, 4-hour Rafale hearing. The suspense continues...

Chief Justice of India summons IAF officers to testify, unwilling to accept MoD responses

By Ajai Shukla
Business Standard, 15th Nov 18

In the Supreme Court (SC) on Wednesday, a three-judge bench comprising Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph spent over four hours hearing a group of petitions filed against the government’s purchase of 36 Rafale fighters for Euro 7.85 billion (over Rs 600 billion) in September 2016.

Former Union miniters Yashwant Sinha and Arun Shourie and lawyer-activist Prashant Bhushan, who have filed a petition in the matter, demanded that the Central Bureau of Investigation (CBI) be ordered to register a First Information Report (FIR) and investigate “criminal misconduct by high ranking public servants” in cancelling the on-going tender for 126 Rafale fighters and instead buying 36 fighters at an allegedly inflated price. Other petitioners include Manohar Lal Sharma and Aam Aadmi Party legislator Sanjay Singh.

The petitions also alleged that Euro 3.9 billion (Rs 317 billion) worth of offsets that arose from this contract were improperly awarded, much of it to Anil Ambani’s Reliance Group.

At the culmination of daylong arguments, the bench announced that the hearing was concluded, and reserved judgement in the cases. That means that the court would pronounce judgement at a future date, which would be intimated later.

The petitioners’ verbal arguments in court on Wednesday centred on the government’s written response to the petitions, which it had submitted on Monday in accordance with the SC’s order on October 31. In response, the petitioners submitted their written arguments on Wednesday morning.

The government’s submission had three parts. The first part addressed the decision-making that led to the contract with French firm, Dassault, for 36 Rafales. A second part explained the process followed for the award of offsets. Both these were shared with the petitioners, as per the SC’s order. A third part related to the contract price, which the government submitted in a sealed cover to the Court, citing secrecy.

Attorney General KK Venugopal claimed that even he had not looked at the Rafale pricing. “I decided not to peruse it myself as in a case of any leak, my office would be held responsible,” he said.

In his arguments, Prashant Bhushan challenged the government’s assertion that the 36-Rafale contract did not follow the standard procurement process because New Delhi had signed an Inter-Government Agreement (IGA) with Paris due to “geo-strategic advantages that are likely to accrue to the country.” 

Bhushan contended that none of the three conditions for an IGA purchase, specified in the Defence Procurement Procedure of 2013 (DPP-2013) that governs the Rafale contract – were met. The first condition allows an IGA when “equipment of proven technology and capabilities… is identified by our armed Forces while participating in joint international exercises.” A second condition permits an IGA “when a very large value weapon system/platform which was in service in a friendly foreign country is available… normally at a much lesser cost than the cost of the original platform/weapon.” The third condition is when the seller country “might have imposed restriction on [a weapon’s] sale and thus the equipment cannot be evaluated.”

Next, Bhushan pointed out that the Law Ministry had flagged two objectionable issues with the 36-Rafale contract document that was referred to it. First, the French government refused to provide sovereign guarantees that it would back the contract through the lifetime of the Rafale fighter. Additionally, the contract specified that the arbitration of any dispute that arose would be conducted in Geneva, not in India.

In response, Venugopal admitted that, while Paris had not provided sovereign guarantees with the Rafale contract, it had provided a “Letter of Comfort”.

In contract law, a “Letter of Comfort” conveys a party’s willingness to discharge contractual obligation, but absent the elements of a legally enforceable contract.

The petitioners’ arguments also focused on the allegedly unilateral decision taken by Prime Minister Narendra Modi just before his meeting with French President Francois Hollande in Paris on April 10, 2015, when both leaders announced that India would get the Rafale.

“Nobody – not Defence Minister Manohar Parrikar, not Foreign Secretary S Jaishankar, not Dassault chief Eric Trappier, not the Indian Air Force (IAF)  and not Hindustan Aeronautics Ltd (HAL) – knew the contract was being changed from 126 fighters to 36 fighters, from Make in India to flyaway condition and with the offsets given to Anil Ambani,” said Bhushan.

In an unusual move, the Chief Justice asked for IAF officers to appear in Court and answer questions.“We are dealing with requirements of the air force and would like to ask an air force officer on the Rafale jet. We want to hear from an Air force officer and not the official of the Defence Ministry on the issue,” said Gogoi.

Eventually, three senior air marshals appeared in court, including the IAF vice chief. In response to Gogoi’s questions, they admitted that HAL was currently building two types of fighter aircraft – the Sukhoi-30MKI and the Tejas Light Combat Aircraft. 

Surprisingly, when asked by Gogoi which generation fighters these were, the IAF officers claimed they were only Generation 3.5 fighters. In fact, the Sukhoi-30MKI is globally recognised as a Generation-4 fighter and is invariably introduced as such by the IAF in air shows and exhibitions like Aero India.

There has been criticism over the Chief Justice’s unwillingness to accept arguments from a defence ministry civilian and his insistence on calling serving air marshals.

“The Chief Justice of India calling air force officers to testify is a low point in Indian constitutional law. This is a violation of civilian supremacy and sets a dangerous precedent,” said Pratap Bhanu Mehta, Vice Chancellor of Ashoka University.

12 comments:

Anonymous said...

Col Ajai Shukla deserves praise for demystifying a matter of such public importance.

Srini Vasan said...

Between the devil & the deep sea.
(A) On the one hand thousands of crores of rupees-all taxpayer's money-back cannot be poured into some Ambani's pocket with national defence as excuse. (B) On the other hand getting our Air Force the real wherewithal to execute what nation expects it to cannot be subordinated to fulfilling some procedures to escape political accusations.
AK Antony opted for choosing procedures, for the sake of personally escaping political accusations, nevermind Air Force got nothing (as didn't Army) for a decade. That this footdragging cost taxpayers 40 % extra should be left at UPA's door. UPA could go along with Andipatti & co to swallow 1,76,000 corre on spectrum but bristle at Rafael's price when nation's defence !
Does a single SINGLE man honestly believe Narendra Modi, Arun Jetley and Nirmala conspired jointly to pocket bribe from Anil Ambani ?

V K Das said...

How can calling of IAF experts by the Supreme Court be a violation of civil supremacy. In the USA it is quite common for defence service officers to be called by the Senate to appear before it and testify.They are also a democracy. We do not seem to understand the meaning of the term 'civil supremacy'.It means the supremacy of the President,the parliament and the Council of Ministers and not that of the civil service over the military.

Anonymous said...

NSR says ---

You got quite a few things wrong in your articles...
Armed forces expert testimony is important part of legislative process of USA system which is a democracy too..
They do not make any decisions without their testimony but in the end what they appropriate is up to the legislative branch...
After legislation, armed forces falls in line and implements the laws...

Your effort to educate populace is commendable...
However, I do not believe PM Modi owes any explanation to anyone except Parliament...

The major culprits are rag tag UPA government which just divided the largesse between them and ignored the armed forces requirements very badly...
If there is any explanation, then it must come from no action St.Anthony, Maun Vratham PM MMS, UPA chairwoman, …

IAF badly needs another 36 or 54 to safeguard India very well from two nuclear armed neighbors..
How do we do that is the only explanation and the answer is --- RAFALE … as no other aaircraft of its caliber will be coming into India anytime soon...

God bless India and its armed forces...

AMIT BISWAS said...

Totally agree with you sir

Unknown said...

TO

HINDUSTAN TIMES

DEAR BHADRA SINHA AND SUDHI RANJAN SEN

THIS REFERS TO YOUR COVERAGE OF IAF’S STATEMENT IN SC ON 15TH OF NOVEMBER, 2018, PAGE 6, COLUMN 6, PARA 5, LAST 6 LINES.

DID AIR-VICE MARSHAL J. CHALAPATHI LIE TO SUPREME COURT?

WHEN ASKED BY CJI TO WHICH GENERATION RAFALE PLANES TO BE SUPPLIED TO INDIA BELONGED TO, AIR VICE MARSHAL SAID FIFTH GENERATION BECAUSE IT HAS THE STEALTH CAPABILITY. BUT AS PER INTERNATIONALLY ACCEPTED CRITERIA, RAFALE IS NOT A FIFTH GENERATION PLANE. IT DOES NOT HAVE THE STEALTH CAPABILITY. ONLY IT HAS A SMALLER RADAR SIGNATURE THAN SUKHOI SU-30 MKI AND CAN BE DETECTED BY RADARS OF ENEMY PLANES. HE ALSO DELIBERATELY UNDERRATED UPGRADED SUKHOI SU-30MKi WHICH IS DEFINITELY 4th+ GENERATION AIRCRAFT. HE PURPOSELY REMAINED SILENT ABOUT SUKHOI SU-30 MKI’S AND TALKED ABOUT TEJAS ONLY.THE ONLY FIFTH GENERATION PLANES INTERNATIONALLY ACCEPTED ARE :
F-22 RAPTOR (US)
F-35 LIGHTENING (US)
CHENGDU J-20 (CHINA)
SUKHOI-57 (RUSSIA)
OPEN THE LINK BELOW:
https://en.wikipedia.org/wiki/Fifth-generation_jet_fighter

FURTHER RAFALE IS THE LEAST SOLD PLANE AMONG ALL THE MODERN FIGHTERS. EXCEPT FRANCE ITSELF ONLY EGYPT AND QATAR HAVE ORDERED 24 EACH. ORDER FROM INDIA CAME AS A SAVING GRACE FOR DASSAULT, OTHERWISE THE COMPANY WAS WITHOUT ANY ORDERS. ALL NATO COUNTRIES EXCEPT FRANCE ARE USING EUROFIGHTER TYPHOON. THE MOST USED 10 PLANES IN SERVICE WORLD OVER ARE:

1. LOCKHEED MARTIN F-16 FALCON (US)
2. BOEING F-18 HORNET (US)
3. SUKHOI SU-30 FLANKER (RUSSIA)
4. BOEING F-15 EAGLE (US)
5. MIKOYAN MIG-29 (RUSSIA)
6. MIKOYAN MIG-21 (RUSSIA)
7. SUKHOI SU-25 (RUSSIA)
8. NORTHROP GRUMMAN F-5 TIGER (US)
9. CHENGDU F-7 AIRGUARD (CHINA)
10. CHENGDU J-7 (CHINA)

THE ABOVE FACT IS NOT TO DENIGRATE THE CAPBILITIES OF RAFALE. IT IS AN EXCELLENT 4+ GENERATION PLANE SUITING INDIA’S REQUIREMENT. THE ONLY POINT BEING BROUGHT OUT THAT DASSAULT WAS MORE DESPERATE TO FINALISE THIS DEAL AND THIS DESPERATION HAS BEEN MISUSED TO THRUST ANIL AMBANI ON THEM.


IF RAFALES HAVE DEVELOPED THE CAPABILITIES OF FIFTH GENERATION PLANE NOW, WHY SHOULD IT KEEP IT SECRET IF IT HAS TO SELL ITS PLANE TO OTHER COUNTRIES.

EVERYTHING ABOUT RAFALE DEAL IS ENIGMATIC.

PROVE IF I AM WRONG ANYONE.

Unknown said...

🤔😁😁As Far As Andipatti & Gang Is Concerned, Well Narendra Went To Their Boss Home In Gopalpuram & Seemed His Blessings😂😂 & Immediately The CBI Court Said 24/7 Opened Up CBI Courts Failed To Gain Any Evidence On The Same & All Got Acquited🤔😍😍Bhakhts ....Modi Modi Modi🤣🤣🤣 & In Reff To Ur Last Para Of Ur Comment, Well Out Of All Available In The Country, Why The Bankrupt A Ambani, Even His Father, Dirubhai Would Have Laughed,😁😁Well Probably If Still Above Would Be Laughing At The Same, A Idiot Who Is In A Debt Of 46000 Crores To Private Lenders Being Selected By The Biggest Democracy In The World As OFFSET PARTNER & That Too Entertaining His The Said Who Had Incorporated A Company For The Said Purpose Just Weeks Before,With Only Land In Nagpur To Show, As Far As Experience For The Same Is Concerned😂😂 I Don't Know What To Say, "God Bless" Or "God Be Praised"😁😁😁😂😂🤣🤣 Narendra😂😂, Income Tax Have Got Diaries, Involvement As CM Gujarat, Birla, Sahara Enteries, Ask P Bushan For The Same, The Scams In Gujarat Are Too Heavy, His Manipulations Are Good Enough To Cover It, But Cannot Bury It🤣🤣, A Jaitely, Ask Kirti Azad BJP MP From Dharbhanga Bihar About Him.🤣🤣He Will Give U Matter Worth For Blockbuster Movie & Sequence🤣🤣, As Far As N Sitharaman Is Concerned, She Enjoying A Good Time As A Minister, 😁😁I Don't Think She Had Ever Dreamed Off, Hope U Understand,🤣🤣 Best Wishes To U & Ur Judgement & Aspirations/Anticipations, Good Luck Gentleman, Pleasure Knowing Ur Views, Good Luck🤝😊

Anurag Yadav said...

Good post with fully agree.

Blogspot said...

Awesome, jai hind.

VIKRAM PRASAD said...

SAAB GRIPPEN

Gaming scope said...

Nice article ajai sir.

Sulekha Verma said...

Agree with you sir.