Thursday, 1 November 2018

Supreme Court seeks details of Rafale price, decision-making and offset partner choice

In a setback for the government, the Supreme Court orders more Rafale details to be divulged

By Ajai Shukla
Business Standard, 1st Nov 18

On Wednesday, the Supreme Court (SC) opened the doors for greater scrutiny of the purchase of Rafale fighters, by requiring the central government (Centre) to submit details of how it decided to buy 36 fighters, of the price paid, and of offset contracts in the deal.

Hearing a petition on October 10, the SC had asked for details of how the Centre decided to buy 36 Rafales, but stated it would not get into “the issue of pricing or the question of technical suitability” of the French fighter. Today, it opened the door to scrutiny of the Rafale’s cost, and the selection of Indian Offset Partners. 

On Wednesday, hearing a writ petition filed by former Bharatiya Janata Party ministers Yashwant Sinha and Arun Shourie and activist Prashant Bhushan, the SC directed: “The Court would also like to be apprised of the details with regard to the pricing/cost, particularly, the advantage thereof, if any, which again will be submitted to the Court in a sealed cover.”

The SC ordered the sharing of information that the government submitted about the decision to scuttle an ongoing negotiation for 126 Rafales and instead buy 36 fighters. It ordered that information “which can legitimately be brought into the public domain be made available to the learned counsels for the petitioners in all the cases, as well as, the petitioners-in-person.”

In addition, the Court ordered that “Further details that could legitimately come in the public domain with regard to the induction of the Indian Offset Partner (if any) be also furnished to the learned counsels for the parties, as well as the petitioners in person.” 

Attorney General KK Venugopal, who appeared on behalf of the Centre, said that details of the contract were under the Official Secrets Act. In response, the Court ordered: “Such of the details in this regard which may be considered to be strategic and confidential may, at this stage, be placed before the Court and may not be furnished to the learned counsels for the parties or the petitioners-in-person.”

Making it clear that the apex court would hear the case expeditiously, the Court said it would hear the case next on November 14. 

It ordered: “The necessary information/ particulars be communicated to the learned counsels for the parties and the petitioners-in-person, and the rest of the details in terms of the present order be submitted to the Court in a sealed cover in the next ten days.”

Before the next hearing, the petitioners would be allowed to file their responses to the information the government conveys. 

Chief Justice of India (CJI) Ranjan Gogoi, who headed the three-judge bench hearing the petition, noted that, while nobody had questioned the suitability of the Rafale fighter for the Indian Air Force (IAF), the bona fides of the decision makers had been questioned, as also the cost paid for the aircraft.

In his remarks, Justice Gogoi stated that, while the Court did not wish to record an opinion for the present, it would like more details about the price paid.

The Sinha-Shourie-Bhushan writ petition sought, under Article 32 of the Constitution, SC directions to the Central Bureau of Investigation (CBI) to register a first information report (FIR) in the deal and to conduct a “court-monitored investigation of corruption by public servants in high public offices.”

Their petition pointed out that the CBI had taken no action on a detailed complaint that Sinha, Shourie and Bhushan had submitted to the CBI on October 4, demanding that it register an FIR and commence investigation into the Rafale procurement.

When Bhushan pressed the SC to issue requested directions to the CBI to begin a probe into the Rafale deal, Justice Gogoi half-humourously suggested the investigating agency be given some time to put their own house in order. The CJI is separately hearing another case involving top CBI officials levelling unprecedented allegations of corruption against each other.

Welcoming the apex court’s order as a “very substantial step forward”, Shourie said: “In television debates and press conferences, government spokespersons have been withholding information by sheltering behind an Indo-French secrecy agreement. But it will be far more difficult to make that claim in an affidavit to the SC.”

Shourie pointed out that French President Emmanuel Macron had already denied that the India-France confidentiality agreement mandated secrecy about costs and prices; stating that New Delhi could decide what was secret. Separately, Defence Minister Nirmala Sitharaman had already tabled a Rafale price in Parliament and her predecessor, Manohar Parrikar, had revealed an indicative price on television. “Given these revelations, how will the government tell the Supreme Court that the price is secret?” asked Shourie.

Bhushan said: “The Honourable Court has asked for details to be made public. What cannot be disclosed in public must be disclosed to the Court in an affidavit. And what the government cannot tell the court, should be listed in the affidavit. So all the details that the government cannot hide under any pretext will have to be publicly disclosed.”

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