Who misled SC, questions Rahul over CAG report that doesn’t exist

NEW DELHI: Hours after the Supreme Court rejected ordering a probe into the Rafale deal, and said it was satisfied that due process has been followed in it, Congress president Rahul Gandhi highlighted parts of the apex court’s order, especially the reference that the Comptroller and Auditor General (CAG) has given its report on the deal to Parliament’s Public Accounts Committee (PAC), to continue his attack on PM Narendra Modi. CAG hasn’t submitted anything to PAC, and the factual error in the court’s order provided Gandhi with fresh ammunition.

In paragraph 25 of the judgment, the bench stated: “The material placed before us shows that the Government has not disclosed pricing details, other than the basic price of the aircraft, even to Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries”.

The SC judgment was delivered on Friday by a three-judge bench of the top court headed by chief justice Ranjan Gogoi.

“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),” the judgment added.

The court seems to have erred on this point. While CAG Rajiv Mehrishi was not available for comments, an official of the audit body familiar with the matter said on condition of anonymity that it “has not given any report to the Parliament on the Rafale deal” although the government has shared price details with it.

Speaking at a press conference along with PAC chief Mallikarjun Kharge, Leader of the Opposition in Rajya Sabha Ghulam Nabi Azad and others, Gandhi said, “How does the Supreme Court judgment have this line that Rafale pricing has been examined by the PAC? Now, we have to ask the government, where is this CAG report?”

He added, “Maybe it is happening in some other Parliament, may be in France. Or, Modi-ji might have set up a PAC in the Prime Minister’s Office,” before reiterating his slogan, “Chowkidar chor hai.”

Kharge emphasised that the deputy CAG deposed before his panel on Friday but the audit watchdog has not given any report on Rafale. “We don’t know how this happened. But this is strange,” added Kharge.

Biju Janata Dal lawmaker and PAC member Bhartruhari Mahtab confirmed this: “There has not been any communication in any manner, be it oral or written, between the PAC and the CAG on Rafale. The rules are clear that only after the CAG report is placed before Parliament, the PAC takes up the matter for review.”

To be sure, the order’s reference to the report doesn’t seem to impinge on the thrust of the order -- which is that due process was followed in the deal, that the court does not have the power to go into the pricing issue, and that the choice of the offset partner is not the government’s but the aircraft maker’s. When asked about the non-existent CAG report, Finance minister Arun Jaitley said: “I think whatever are the contents of the verdict in terms of the procedural details of the narration which have been given that is not a subject matter of our comment. If there is something that is required to be done in that regard, I think the lawyers will examine it and do the needful.”

Lawyer and activist Prashant Bhushan, who was one of the petitioners in the case, said some of the facts mentioned in the order are neither on record nor factually correct.

Bhushan said in a statement that the CAG report has not been submitted to PAC 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,” he alleged.

Bhushan pointed out that the court also mentioned its judgment 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,” said Bhushan.

The judgment mentioned that the bench during hearing in the case interacted with the senior Air Force officials who “answered Court queries in respect of different aspects, including that of the acquisition process and pricing.” Bhushan termed this too as “factually incorrect”. “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,” said Bhushan.

The petitioners had also alleged that the Rafale maker Dassault gave an offset contract to Anil Ambani’s group company at the cost of public sector Hindustan Aeronautics Limited (HAL) and the court, in its order seems to get confused between Reliance Industries, promoted by Mukesh Ambani, with which Rafale maker Dassault was discussing a partnership in 2012 and Reliance Defence, promoted by Anil Ambani, with which Dassault entered into a partnership in 2015. The two run separate conglomerates. Lawyer Bhushan pointed out: “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.”

After Rahul Gandhi’s press conference, law minister Ravi Shankar Prasad told reporters the Congress chief’s statement were unfortunate and a new low in country’s politics. “Does he consider himself above the Supreme Court? “[The] SC verdict has exposed the lies of Rahul Gandhi. We had expected that he will accept the judgment with humility,” Prasad said, adding that Gandhi’s statement shows his frustration.