RAFALE: DEVIL IN THE DETAILS
The government was back on the defensive a week after the Supreme Court dismissed petitions seeking an investigation into the Rs 60,000 crore purchase of Rafale fighter aircraft. On December 12, a three-judge bench, headed by Chief Justice Ranjan Gogoi, found ‘no reason for any intervention by this court on the sensitive issue of purchase of 36 aircraft by the Indian government’.
The four petitions were filed separately by lawyer Manohar Lal Sharma, private individual Vineet Dhanda, AAP leader Sanjay Singh and former Union ministers Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan.
The judgment said the court had studied the material placed before it carefully, including the acquisition process and pricing. ‘We are satisfied that there is no occasion to really doubt the process.’ It did not find ‘any substantial material on record to show this is a case of commercial favouritism to any party by the Indian government as the option to choose the Indian Offset Partner does not rest with the Indian government’, dismissing charges that industrialist Anil Ambani was favoured in the deal.
The verdict steered clear of price comparisons between deals struck by the UPA and NDA, stating it was not the job of the court to do so. It also said ‘merely conjecturing that the initial RFP (Request for Proposals) [in the 2007 tender under the UPA] could have resulted in a contract is of no use’. However, in passing its judgment, the court invoked Article 32 of the Constitution to emphasise its limited remit in scrutinising decisions taken by the Executive in matters relating to national security.
The Congress, meanwhile, has latched on to a contentious excerpt (paragraph 25) of the judgment—presumably based on the affidavit filed by the government in a sealed envelope—
which reads: ‘The pricing details have, however, been shared with the CAG, and the report of the CAG has been examined by the PAC. Only a redacted portion of the report was placed before the Parliament.’ While the CAG is indeed auditing the 2016 purchase of the Rafale fighter jets, it has yet to submit its report to the Public Accounts Committee (PAC). The PAC, a parliamentary body that audits the government’s revenues and expenditure, then tables the report in Parliament. This hasn’t happened either. But the Congress, smelling blood in the run-up to the 2019 general election, is not letting go of an opportunity to force the government on the defensive. According to Congress spokesperson Randeep Singh Surjewala, the judgment had only vindicated the party’s stand that “the Supreme Court is not the forum to decide sensitive defence deals”.
The government termed the Para 25 references in the judgment an unfortunate ‘misrepresentation’. On December 15, three days after the verdict, the Attorney General filed an application before the court asking for an amendment in Para 25. The amendment suggests that the two key words ‘has been’ and ‘was’ (highlighted above) needed to be replaced with ‘is’, to make it a statement of procedure rather than something that has already occurred. Questions still remain over the deal, particularly the decision to downsize the numbers from 126 aircraft (7 squadrons) to 36 jets (2 squadrons) and the price of the deal, which the government says was 9 per cent lower than a previous deal it scrapped. Meanwhile, the shortage of fighter aircraft persists and the IAF has floated a Request for Information (RFI) for 110 fighter jets, to be made locally by a foreign vendor in collaboration with an Indian ‘strategic partner’. A Request for Proposals (RFP) or tender, which is among the first steps, can be expected no sooner than mid-2019.
The Congress, meanwhile, has stepped up pressure on the government, demanding a joint parliamentary committee (JPC) probe of the deal. (A JPC can summon files and study file notings.) With the government refusing to comply, the resultant deadlock has ensured the Rafale deal will continue to be an issue going into the election next year. The Supreme Court’s judgment could only have brought interim relief to the government.
The government termed the Para 25 references in the judgment an unfortunate ‘misrepresentation’