SC reserves order on Rafale, no sovereign guarantee by French government backing the deal

New Delhi: The Supreme Court on Wednesday reserved its verdict on four petitions seeking a court-monitored probe into 36 Rafale fighter jet deal with French firm Dassault Aviation even as the government admitted that there was no sovereign guarantee by the French government backing the deal.

On pricing, the court asked Attorney General K.K. Venugopal not to respond to the contentions raised by the petitioners until the court decides to look into it.

“The discussion on pricing will come only if we decide… so long that is not there,” the bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph told the AG. The AG also opposed the judicial review of the Rafale deal.

He said that if the cost of weaponery and avionics comes in public domain, it will be used by the adverseries to make out the weaponery fitted in Rafale.

A three-hour-long hearing saw Attorney General K.K. Venugopal telling the bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph that “though there is no sovereign guarantee from France (government), there is a letter of comfort.”

The hearing saw counsel Prashant Bhushan and former Union Minister Arun Shourie questioning the circumventing of the procedure for aborting the process for procuring 126 aircraft (18 in a flyaway condition and 108 to be be manufactured by HAL) in favour of procuring 36 jets in a ready-to-fly condition and unloading HAL as an offset partner.

The petitions included one by Prashant Bhushan, Arun Shourie and former Finance Minister Yashwant Sinha, and others by advocate M.L. Sharma, Vineet Dhanda and AAP MP Sanjay Singh. All of them have broadly assailed the pricing and the induction of an offset partner replacing HAL.

Defending the deal on the grounds of “urgent requirement” of national security, the Attorney General justified the scrapping of the earlier deal for 126 aircraft as it was taking a long time in reaching a conclusion.

This was contested by Bhushan who had earlier referred to March 25, 2015 statement of Dassault Chief Eric Trappier saying that the deal with HAL was 95% complete and that they were in final stages of an agreement. Bhushan said the Dassault CEO had said this in the presence of the IAF Chief and HAL Chairman.

At that point of time, Bhushan contended the Indian Air Force Chief, Dassault’s CEO and the HAL chairman were unaware of any new deal.

Bhushan wondered what happened in 15 says that on April 10,2015, Prime Minister Narendra Modi announced in Paris the plan to procure 36 ready-to-fly Rafale aircraft.

In the beginning of the hearing, CJI inquired if any IAF officer was present in the court. The court sought their presence after Attonery General said that there was Additional Secretary Apurva Chandra and other officials.

In the post-lunch hearing, there were a number of senior IAF officers present in the court. On being asked, Air Vice Marshal T. Chalapathi told the court that last time they had inducted Mirage was in 1985 and since then there was no induction of new fighter aircraft.

Since then there is “zero addition”, observed CJI Gogoi.

The hearing also saw Justice K.M. Joseph asking nearly all the questions coming from the bench, including the necessity of amending the Indian Offset Partner, thereby leaving it to the original equipment manufacturer to make a choice.

“What was the need to amend it (IOP guidelines)? What if we come to a situation the IOP is not able to carry out its obligation? What happens to national interest?” asked Justice Joseph.

The AG told the bench that IOP guidelines, which provided that the Defence Ministry will process the offset partner and would be approved after the nod by the Defence Minister, were amended on the recommendation of a committee headed by the Secretary, Defence Production.

He said the matter was referred to the committee after some of the weapon manufacturers had expressed difficulties with the earlier procedure.

“The OEM, under the current procedure, suggests the name of offset partner. We can suggest a change”, AG told the bench explaining the current position on the choice of the offset partners.

The next query from Justice Joseph came as AG was addressing the submission by Prashant Bhushan that an Inter Government Agreement could be only in three circumstances: knowledge about the worth of equipment in the course of joint exercise, acquiring of a platform already in use by the owning country or where there is a need for a government waiver of restrictions.

As AG Venugopal defended the government taking IGA route, Justice Joseph asked: “You did not go for Rafale on the basis of joint exercises.”

On a query by the CJI Gogoi, the court was told that the Air Force of France, Egypt, Qatar had Rafale fighter aircraft.

In the beginning as AG started making submission justifying opting for 36 Rafale instead of original 126, Justice Joseph asked: “On April 10, 2015, how could you take the decision to procure 36 aircraft without giving up earlier process for acquiring 126 aircrafts?”

As AG looked for answer, CJI Gogoi said, “The answer to the question is in the para itself you started reading.”

The hearing witnessed CJI Gogoi cut short the AG as he said, “We lost soldiers in Kargil War. If there was Rafale at that time, we could have saved many lives as they could shoot up to a range of 60km.”

“Kargil was in 1999 and Rafale came in 2014,” CJI told the AG who tried to save the situation saying that he was speaking hypothetically.

Telling the court that the inter government agreement on Rafale was a convenient way to bring in the middleman, former Union Minister Shourie said, “You can’t hide your incompetence, corruption and fool the nation in the name of nationalism always. As things are unfolding, they are exposing the gross incompetence of Modi Government in managing the transactions.”

Shourie told the court that governmernt had shared all the information relating to sensitive matters, but wondered why it was shying away in the case of Rafale deal.

Bhushan referred to an interview of former Defence Minister Manohar Parrikar telling a news channel that it was Prime Minister Modi’s decision thereby telling the court that even Defence Minister was not aware of the decision to buy 36 ready-to-fly Rafale.