https://docs.google.com/document/d/e/2PACX-1vT-NSOUZ3zob3gXrbNu_LGYx9KeWWf_YcnjlkArJmE76ub_194tUPSTNVkiucV8Eeb20T-07d8J1Q6b/pub
Rafale Controversy: Supreme Court Judgement Amongst Worst Ever?
Sukla Sen
Judgement Sparks Controversy
The judgement1 delivered by the Supreme Court on December 14th, has already
attracted a hell lot of controversy.
Amit Shah, Rajnath Singh and Arun Jaitley, in particular, came down heavily
on Rahul Gandhi and the Congress, losing no time and using the verdict as a
battering ram, as was rather expected.2
Rahul Gandhi himself, aided by other top Congress functionaries, was no
less swift in responding.3
While the BJP leaders, not too unjustifiably, flaunted the judgement as a
"clean chit", Gandhi underlined, in particular, supposedly a big hole in
the verdict - alleged non-existence of a CAG report on the deal, the
presumed existence of which constitutes one of the cornerstones on which
the verdict rests, the pricing aspect, in particular.
In very brief, the judgement posited:
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 (hereafter referred to as “PAC”). (Ref.: Para 25.)
Mallikarjun Kharge, the current Chairman of the PAC, by Rahul's side - in
the press conference (watch the subject video cited above), flatly denied
the veracity of the above contention:
"I spoke to the deputy CAG today and he told me no such report
exists. CAG reports are referred to the PAC... if the report is not with
CAG, the question of it reaching the PAC does not arise. ...," Kharge said.4
That's too disturbing.
The GoI, however, under the impact of the storm of outrage spearheaded by
the Congress, had to initiate a damage control move and has asked for a
"correction" in the Supreme Court order resulting from misinterpretation of
a note submitted in a sealed cover.5
But, that may not be end of the story.6
In any case, at least one another factual discrepancy has also been pointed
out.
In the meanwhile, Yashwant Sinha, Arun Shourie and Prashant Bhushan have
jointly issued a statement refuting the BJP's claim of a "clean chit" and
therein pointed out four substantive discrepancies, including the (at
least) two listed out in the Congress press conference in the judgement:
In fact, some of the facts mentioned in the court judgement are not
only not on record but are patently incorrect. ...7
Two Significant Factual Discrepancies
In the text that follows two other substantive discrepancies in the verdict
would be gone into.
AA. The para 3 of the judgement, inter alia, states:
According to the official respondents negotiation continued
(after the change of government in 2014). A process of withdrawal of the
Request for Proposal [RFP] in relation to the 126 MMRCA was initiated in
March 2015 [emphasis added]. On 10th April, 2015 an Indo-French joint
statement, for acquisition of 36 Rafale Jets in flyaway condition through
an Inter-Governmental Agreement (hereinafter referred to as “IGA”), was
issued and the same was duly approved by the DAC. The Request for Proposal
for the 126 MMRCA was finally withdrawn in June 2015.
Thus, it has been contended that the process of withdrawal of the RFP had
been initiated in March 2015 - i.e. before the public announcement of the
decision to purchase (only) 36 Rafale jets instead of 126, as decided
earlier, on April 10 2015.
There's no indication anywhere what document was produced in support of
this contention (as contained in the para 18 of the GoI affidavit).
What's, however, worth taking note of is that some known facts, very much
available in the public domain, go to pretty well contradict that.
I. By the very end of March, on March 25 to be precise, the Dassault CEO
had expressed confidence that the deal for for purchase of 126 jets, with
negotiations 95% completed, would now go ahead with the HAL as the
(principal) Indian partner.
The Rafale aircraft has been chosen by India after a comprehensive
selection process in the frame of the MMRCA competition, and exclusive
negotiation is ongoing. The Rafale is the next logical step. HAL and Indian
industries will contribute to the “Make in India” policy by developing and
manufacturing the aircraft locally. The Rafale will fulfill all of the
operational requirements of the Indian Air Force and the industrial
requirements of India’s economic policy as the Mirage 2000 continues to do
” declared Eric Trappier, Chairman & CEO of Dassault Aviation (on March 25,
at the acceptance ceremony of the first two Indian Air Force Mirage 2000
I/TI held at Istres, in the presence of the Indian Ambassador to France,
Arun K. Singh, among others, ).8
Also:
Pitching the multi-billion deal for 126 Rafale combat jets as the
"logical step" towards the 'Make in India' initiative, Dassault Aviation on
Wednesday hoped that the contract which has been "95% finalised" would be
signed soon.9
Even more telling is this video clip (1:09 mins.), in which Trappier reads
out a prepared statement in presence of the Indian dignitaries leaving no
scope for any doubt: <
https://twitter.com/incindia/status/1043750808041320448?lang=en>.
Trappier can clearly be heard saying in the video, “After an outstanding
amount of work and some discussion, you can imagine my great satisfaction
to hear on one hand from the Indian Air Force chief of staff that he wants
a combat proven aircraft which could be the Rafale... and on the other hand
from HAL chairman that we are in agreement for the responsibilities
sharing, considering as well our conformity with the RFP (Request for
Proposal) in order to be in line with the rules of this competition. I
strongly believe that contract finalisation and signature would come very
soon.”10
That was from the Dassault by the end of March 2015.
II. Now, March over, on April 8 2015, the Indian Foreign Secretary briefs
the media (specifically) on the Prime Minister's impending foreign visit.
A relevant extract:
As I said, the Prime Minister would be leaving tomorrow. He arrives
tomorrow evening in Paris. His day begins on the 10th with a ceremonial
welcome in the morning. He then goes on to a roundtable. He has two back to
back roundtables – one is with French CEOs with infrastructure as a theme,
and the second is with French CEOs with defence technology as a theme.
...
Question:I just wanted to know whether we could expect some progress
in the negotiations on the Rafale deal during Prime Minister Modi’s visit.
...
Foreign Secretary:I have three Rafale questions, one nuclear
question, one CEO question and one Indian Ocean question.
...
In terms of Rafale, my understanding is that there are discussions
under way between the French company, our Ministry of Defence, the HAL
which is involved in this. These are ongoing discussions. These are very
technical, detailed discussions. We do not mix up leadership level visits
with deep details of ongoing defence contracts. That is on a different track
. [Emphasis added.] A leadership visit usually looks at big picture issues
even in the security field.11
That's the testimony from the Indian Foreign Secretary himself, briefing on
the purpose of the Prime Minister's foreign trip commencing the very next
day.
Not the slightest hint that the process for the withdrawal of the RFP had
already begun.
In fact, just the opposite.
lll. Now, the Defence Minister himself, post the announcement.
Watch: <https://www.youtube.com/watch?v=2udl1EHdZ2s> (0:18 - 0:26 mins., in
particular).
It was published on April 14 2015.
The keyword is "probably".
Also highly helpful is the somewhat fumbling way it was delivered.
Never mind.
There's just no talk of any withdrawal of the RFP.
The Defence Minister is, visibly, caught off-guard by the surprise
announcement.
And, it's no rocket science that the process of withdrawal of the RFP
cannot be launched without the Defence Ministry initiating the process.
Inference
Hence, the assumption made by the Supreme Court, as cited above, is very
much in conflict with the facts available in the public domain.
Not in sealed cover.
What is also relevant here is that the portions of the affidavit12 filed by
the GoI before the Supreme Court, which were made available to the
petitioners, offer not the faintest hint how the magic figure of 36,
drastically cutting down from 126 - arrived at the conclusion of a lengthy
and, understandably, arduous, procedure was, in the very first place, had
been arrived at.
All that is available is about how the figure of 36 would get regularised
post facto.
The net gain of the case filed in the Supreme Court appears to be the
official admission by the regime, even if only implicit, that the figure of
36, to be announced by Modi on April 10 2015 in Paris, was arrived at
completely arbitrarily.
And, the relevant circumstantial evidences further underline that other
than the Prime Minister no part of the legitimate official machinery had
been involved.
Two things, in particular, emerge from the above.
I. The Supreme Court has, apparently, taken a fleeting mention of a date,
in the GoI affidavit, clearly in conflict with known facts, as a gospel
truth, without any application of mind.
II. The very substantive question issue of how the all-important figure of
36 had been worked out by the Prime Minister in the run-up to his surprise
announcement on April 10 2015 has been summarily brushed aside in the
following words (ref.: Para 22.):
We cannot sit in judgment over the wisdom of deciding to go in for
purchase of 36 aircrafts in place of 126. We cannot possibly compel the
Government to go in for purchase of 126 aircraft. This is despite the fact
that even before the withdrawal of RFP, an announcement came to be made in
April 2015 about the decision to go in only for 36 aircrafts.
This completely ignores the aspect if the figure of 126, originally
envisaged following the due procedure, has been drastically cut down to
only 36 in a completely irregular and arbitrary fashion, then what's the
motive behind?
In that event, it'd definitely call for investigations.
The issue is central to the whole controversy.
BB. The para 4 of the said judgement further posits:
Things remained quiet [since April 10 2015?] until sometime in the month of
September, 2018 when certain newspapers reported a statement claimed to
have been made by the former President of France, Francois Hollande, to the
effect that the French Government were left with no choice in the matter of
selection of Indian Offset Partners and the Reliance Group was the name
suggested by the Government of India [emphasis added]. This seems to have
triggered of [sic] the writ petitions under consideration.
The para 23 reiterates:
We may also note that the process was concluded for 36 Rafale fighter jet
aircrafts on 23rd September, 2016. Nothing was called into question, then.
[Emphasis added.] It is only taking advantage of the statement by the
ex-President of France, Francois Hollande that these set of petitions have
been filed, not only qua the aspect which formed the statement, that is,
the issue of IOPs but also with respect to the entire decision-making
process and pricing. We do not consider it necessary to dwell further into
this issue or to seek clause by clause compliances.
This conclusion drawn by the Court is even more glaringly in conflict with
the known relevant facts.
I. On July 21 2018, a no-confidence motion was debated in the lower house
of the parliament.
The Rafale issue was just not only raised it was, arguably, the very
centre-piece of the submission made by the national president of the main
opposition party, Congress, in support of the motion:
Congress President Rahul Gandhi accused the government of "lying" to the
nation on the issue of sharing details of the Rafale jet deal which was
rejected strongly by Prime Minister Narendra Modi calling the charges
"distortion of truth".13
That was two months before the Hollande disclosure.
Clearly shows how “quiet” the things had been before the disclosure.
Il. Now, two years before the “disclosure”:
Raising several questions over the Rs 59,000-crore Rafale fighter
jet
deal, Congress today said the absence of any provision of technology
transfer would cost India "very heavily". Former Defence Minister A K
Antony also demanded making public the inter-governmental agreement
with France. He wondered how India would bridge the gap with respect
to China and Pakistan by acquiring just 36 aircraft when the original
plan was for 126.
Addressing a press conference along with party spokesman Manish Tewari at
the AICC headquarters, Antony lamented that the idea of 'Make in India'
which was there in the original plan has also "gone" in the
present deal. "During UPA, we had planned to buy 126 aircraft to
strengthen IAF which was its urgent operational requirement
considering security situation in the country," Antony said wondering
why only 36 aircraft were being bought. [Emphasis added.]
"Is it enough to meet operational requirement of the IAF which has a
sanctioned strength of 42 squadrons and.... at present there are just
32 squadrons?", Antony asked. [Emphasis added.] A squadron has generally 18
aircraft. Suggesting that more aircraft were necessary for the operational
requirement of the IAF, he said, otherwise, by 2022 the squadron available
with IAF would be reduced to 25. "I don't want to comment on the present
price before I know the exact details. Government must publish the details
of the final contract," Antony said.14
This was the very day following the signing of the Inter-Governmental
Agreement for the purchase of 36 Rafale jets.
A section of the Indian media had, however, started flagging various issues
well before that, since soon after the announcement in Paris.15
In any case, since the Congress press conference led by the former Defence
Minister, A K Antony, immediately after the signing of the IGA, the debate
would keep hotting up, as is captured by Rahul Gandhi’s no-confidence
motion speech.
So much so that the visibly enraged (subsequent) Defence Minister would
publicly announce the Government’s brusque refusal to engage with the
Opposition on the issue:
Defence minister Nirmala Sitharaman has ruled out any engagement
with the opposition on issues relating to the multi-billion dollar Rafale
fighter jet deal, saying they do not deserve to be involved after throwing
muck on a very sensitive issue concerning India's defence preparedness.16
Inference
So, the subject observations made by the Supreme Court, as cited above
(extracted from para 4 & 23), are completely at variance with actual facts,
which are just not available in the public domain, but all too well-known.
CC. Towards the very end, in para 32 – there’re in all 34, the matter is
again brought up as under:
There has been a categorical denial, from every side, of the
interview given by the former French President seeking to suggest that it
is the Indian Government which had given no option to the French Government
in the matter.
Apart from the fact that the claim17 made by Hollande grievously affects
the “every side” that has denied its veracity and thereby, too obviously,
these denials just cannot be taken at their face value without due
verifications, it’s quite evident that the premise, as laid out in the
judgement, that the controversy regarding the deal was triggered solely by
the Hollande disclosure has been used as a major ground for rejecting the
petitions demanding an enquiry.
Inference
As has been made out above, this premise, one of the major determinants of
the final decision, is just flagrantly flawed.
That, evidently, makes the final decision highly questionable.
Final Conclusion
While interpretation of a law or analysis of a situation, as given out in a
judgement, is open to questioning as a matter of routine, citation of
“facts” in a judgement, as the basis of the final conclusion, must be above
all controversies.
>From that point of view, the subject judgement – shot with a number of
flawed assertions, delivered by the highest court of India - that too by a
bench headed by the honourable CJI himself, appears to be only too
worrisome.
Its implications are too disturbing.
The only redeeming aspect is that the judgement appears to be so very
flawed – pretty visibly, it’s not too likely to be able to decisively
reshape Indian public opinion in this regard. It may even do just the
opposite by refuelling the controversy.
Dec. 16 2018
Notes and References:
1. See: <
https://www.sci.gov.in/supremecourt/2018/32813/32813_2018_Judgement_14-Dec-2018.pdf
>.
2. Ref., e.g.: <
https://indianexpress.com/article/india/supreme-court-rafale-deal-probe-petitions-dismiss-fighter-jets-bjp-congress-5493168/>
and <
https://www.businesstoday.in/top-story/rafale-deal-after-sc-verdict-rajnath-singh-says-rahul-gandhi-maligned-india-image-globally/story/300607.html
>.
3. Ref., e.g.: <
https://www.facebook.com/MirrorNow/videos/275416856662843/?t=18>, <
https://scroll.in/latest/905724/cag-report-cited-by-supreme-court-in-rafale-judgement-does-not-exist-rahul-gandhi?fbclid=IwAR3GtlVHr_sXBYNp3b7T35aW-bj_Qyajwb39p3lHkvGKtkCKNDTjnXdc3-w>
and <
https://m.timesofindia.com/india/congress-demands-jpc-probe-into-rafale-deal-govt-in-no-mood-to-oblige/amp_articleshow/67100399.cms?fbclid=IwAR2-nNjIqJ5IoHsfeYpkN_EiMVP3PzNdfSFZU0eV_Fy-41W2eHtxvRxdmpA
>.
4. Ref.: <
https://m.timesofindia.com/india/congress-demands-jpc-probe-into-rafale-deal-govt-in-no-mood-to-oblige/amp_articleshow/67100399.cms?fbclid=IwAR2-nNjIqJ5IoHsfeYpkN_EiMVP3PzNdfSFZU0eV_Fy-41W2eHtxvRxdmpA
>.
5. Ref.: <
https://www.ndtv.com/india-news/centre-requests-supreme-court-to-correct-factual-error-in-rafale-verdict-1963133>
and <
https://timesofindia.indiatimes.com/india/rafale-judgment-govt-moves-sc-seeking-correction-in-para-which-makes-reference-to-cag-report-pac/articleshow/67105691.cms
>.
6. Ref.:
https://timesofindia.indiatimes.com/india/kharge-says-he-may-request-pac-to-summon-ag-cag-on-rafale/articleshow/67110765.cms?fbclid=IwAR38aN2H5AYlyC6YwDoW7JPZWEotttAHQXugdI-eAl0jzviPz90Z7JKWLzE
and <
https://www.indiatoday.in/india/story/rafale-deal-bjp-will-hold-70-press-conferences-counter-congress-1410435-2018-12-16?fbclid=IwAR2Ev3LsGveItV2Uawc2FpBcZBWB9isuqiDDvtngzpVZxeOv3qhjomeF8S0
>.
7. Ref.: <
https://thewire.in/law/supreme-court-rafale-verdict-not-clean-chit-modi-govt
>.
8. Ref: <
http://www.airrecognition.com/index.php/archive-world-worldwide-news-air-force-aviation-aerospace-air-military-defence-industry/global-news-2015/march/1610-dassault-officially-delivers-first-two-upgraded-mirage-2000-iti-to-the-indian-air-force.html
/
<https://www.flightglobal.com/news/articles/pictures-india-accepts-first-upgraded-mirage-2000s-410545/>
>.
9. Ref.: <
https://www.dnaindia.com/business/report-rafale-the-next-logical-step-under-make-in-india-dassault-aviation-2071878
>.
10. Ref: <
https://www.nationalheraldindia.com/national/watch-congress-releases-video-of-dassault-ceo-eric-trappier-saying-on-march-23-2015-that-deal-with-hal-for-rafale-almost-done
>.
11. Ref.: 'Transcript of Media Briefing by Foreign Secretary on Prime
Minister’s forthcoming visits to France, Germany and Canada (8 April 2015)'
at <
https://www.mea.gov.in/Speeches-Statements.htm?dtl/25044/Transcript+of+Media+Briefing+by+Foreign+Secretary+on+Prime+Ministers+forthcoming+visits+to+France+Germany+and+Canada+8+April+2015
>.
12. Ref.: <
https://barandbench.com/rafale-centre-dassault-offset-partner-supreme-court/rafale-deal-repy-by-centre/?fbclid=IwAR2up7JOzD6T2SPDreQuNPLUO66Cf4g5nmqOLBArQJXtN8mlZMsNalptZw0
>.
13. Ref.: 'No-Confidence Motion: Modi government lying on Rafale, says
Rahul Gandhi; PM rejects charges' at <
https://www.financialexpress.com/india-news/no-confidence-motion-modi-government-lying-on-rafale-says-rahul-gandhi-pm-rejects-charges/1252650/
>.
14. Ref.: ‘Cong critical of Rafale deal, wants contract to be made public’,
dtd. Sept. 24 2016, at <
http://www.deccanherald.com/content/572223/cong-critical-rafale-deal-wants.html
>.
15. Ref., e.g.: <
https://www.thecitizen.in/index.php/en/NewsDetail/index/2/3283/DASSAULT-REWARDED-FOR-FUDGING-RAFALE-PRICE-STILL-NO-CLARITY-ON-NEW-DEAL
>.
16. Ref., e.g.: <
https://www.deccanherald.com/national/no-question-engaging-692623.html>.)
17. Ref.: ‘Asked by Agence France-Presse on the sidelines of a conference
he gave Friday in Montreal, Mr. Hollande stressed that the name of Reliance
Group had appeared in the context of the "new formula" of negotiations on
the purchase Rafale, decided by the Modi government after taking office.”
At <
https://www.lemonde.fr/politique/article/2018/09/22/vente-de-rafale-a-l-inde-francois-hollande-et-julie-gayet-au-coeur-de-la-polemique_5358681_823448.html?utm_term=Autofeed&utm_medium=Social&utm_source=Twitter#Echobox=1537600979
>.
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