SC Judgment on Rafale Deal gives Clean chit to BJP government

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The Supreme Court judgment on Friday, 14 December 2018 regarding investigating allegations of government wrongdoing in the Rafale deal has been received with mix reviews. The ruling party, Bharatiya Janata Party (BJP), claimed that the top court had acknowledged that the deal is not tainted and there was no corruption but the opposition Congress party saw it as a means of the Supreme Court shirking its responsibility in this matter and finds it majorly disappointing.

Facts of the case

Congress party leaders Yashwant Sinha and Arun Shourie and senior advocate of Supreme Court Prashant Bhushan had tried to file an FIR with the CBI to initiate investigations into the Rafale deal but when the CBI refused to entertain their complaint they then moved to the Supreme Court to “sought a court monitored investigationunderArticle 32.

The complaint seeks the Court’s approval for “an independent investigation by the CBI or SIT” placing reliance on Lalita Kumari’s case in which the Constitution Bench of the top court had clearly stated that “if allegations made in a senior advocate of a criminal offence, then an FIR must be registered and CBI to court-monitored.” The complaint raised major issues of concern and corruption by the government in this deal.

Initially, 126 fighter jets were supposed to be procured with 18 jets court-monitored to use condition supposed to be delivered by French company Dassault, makers of Rafale. The remaining jets were to be made jointly by Dassault and HAL (Hindustan Aeronautics Limited) by transfer of technology and under Make in India project. But, the government denigrated from that deal stating it met deadlock and hence decided to procure 36 jets in ready to use condition without technology transfer process. The cost of the total deal was assumed to be in the ballpark of Rs. 715 crore per jet which has now been arbitrarily increased to Rs. 1650 crore per jet. The complaint further alleged procedural norms were ignored and approval of the Defence Acquisition Council (DAC) was bypassed. It was alleged that “this contrived deal has been struck only for the purpose of giving large commissions to Anil Ambani’s company in the guise of offset contracts” which at the moment is representing the government in this deal with the French authorities.

Court ruling

A three-judge Bench comprising of Chief Justice of India, Ranjan Gogoi, Justices Sanjay Kishan Kaul and KM Joseph heard the case and ruled out any apparent corruption. Apex Court declared “we find no court-monitored any intervention on the sensitive issue of purchase of 36 defence aircraft. Perception of individuals cannot be the basis of a fishing and roving enquiry by this court, especially in such matters.” Clarifying its defence the top court stated that “the need for the aircraft is not in doubt. The quality of the aircraft is not in question. crore per-government agreement (IGA) had not been invoked out of turn. The procurement contracts should be subject to a different degree of scrutiny.”

The Court refrained from commenting on pricing stating, “not the court’s job to deal with the comparative details of the pricing when the need and quality of aircraft are not in doubt. Our country cannot afford to be unprepared/underprepared in a situation where our adversaries have acquired not only the fourth generation but even fifth generation aircrafts, of which we have none.” The Court also ruled“we cannot possibly compel the government to go in for the purchase of 126 aircraft.” On the question of choice of partner company by Dassault and the sudden issues of HAL being ousted because of technical problems, the Court made its position clear; “such matter is seemingly left to the commercial decision of Dassault. Once again, it is neither appropriate nor within the experience of this court to step into this arena of what is technically feasible or not.”

Impact of the judgment

The petitioners and leaders of Congress party shared their disappointment with the media terming the verdict as shocking but argued it can be “no means be considered to be the Supreme Court’s clean chit to this deal” as “the court has not examined nor said that it was examining the facts in detail, and has dismissed the petition only on the basis of its perception of its own jurisdiction under Article 32 of the Constitution.” Reliance Group chairman Anil Ambani, however, welcomed the judgment and claimed the Apex Court’s verdict has “summarily dismissing all PILs filed on the Rafale contracts, and conclusively establishing the complete falsity of the wild, baseless and politically motivated allegations levelled against Reliance Group and me personally.”

The petitioners, Yashwant Sinha and Arun Shourie and Senior Advocate ofSupreme Court Prashant Bhushan also stated they were baffled by a certain statement from the verdict in paragraph 25 of the judgment where it was mentioned “the pricing details have, however, been shared with the Comptroller and Auditor General and the report of the CAG has been examined by the Public Accounts Committee. Only a redacted portion of the report was placed before the Parliament, and is in public domain.”

Senior officials of Comptroller and Auditor General (CAG) however “confirmed that there is no report yet on the Rafale deal. It is expected to be tabled only in January-end before the start of the budget session.” PublicAccounts Committee (PAC) chief and a Congress veteran, MallikarjunKharge added “the CAG does not have that report. The PAC has not examined any such report…. This is strange.” CPM general secretary Sitaram Yechury called “for an enquiry. A JPC probe is the only way.” Congress party also reiterated their support for a Joint Parliamentary Committee (JPC) probe into the Rafale deal. But BJP has promptly dismissed any such probe accusing “in the past of JPCs working on partisanlines.”

Finance minister Arun Jaitley rubbished the opposition claims stating, “they(the Congress) refuse to accept even the Supreme Court verdict just because falsehood was created by a family, certainly in our democracy, the family is not above the Supreme Court.” Attorney-general K.K. Venugopal said, “I have not misled anybody or the court. I have not read the judgment so far.” Law minister Ravi Shankar Prasad claimed, “he is going into technicality, I am going on substance. If he (Rahul) wants to find faults to do politics, I have nothing to say.” Pushed on their back foot by the controversial statement on the Supreme Court verdict the government had requested the top court to correct which they claim is “a typographical error. Errors do happen and once a mention is made the courts do fix them. Due to the typing error what was to be the CAG report will be examined by the PAC became it has been examined by the PAC.”

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