SC has no other option left now

Author: 
Amritananda Chakravorty

The last few weeks have been a revelation in the context of Rafale deal. Each day a new story comes of rampant procedural violations, bypassing of India’s national security interests, diluting anti-corruption clauses, and now the most damaging news that Anil Ambani had knowledge of the Rafale deal 10 days before the Prime Minister visited France in April, 2015. And it is clear that none of these documents/information were made available to the Supreme Court, which was kept in complete dark about the processes involved in the Rafale deal.
With the disclosure of these information, it is imperative that the Rafale decision of the Supreme Court, delivered on 14th December, 2018, ought to be reviewed and set aside, and an independent investigation ought to be ordered. As is well-known, the Supreme Court had dismissed the petitions seeking independent investigation into the Rafale deal primarily on the ground of lack of jurisdiction, yet the Court had ruled on few merits of the case, and had several incorrect and inconsistent observations, based on complete wrong and incorrect facts submitted by the Government in a ‘sealed’ cover. Now it is evident that the Government had deliberately and maliciously suppressed critical facts about the dissonance within the Ministry of Defence, and how the PMO had started ‘parallel’ negotiations with the French negotiating team.
It is well-settled that the Supreme Court can review its own order or judgment in case of a manifest wrong or error apparent on the face of the record. In the present case, several manifest errors have been noticed. Firstly, the Court itself noted that some ‘minor deviations’ may have occurred, but they were not enough to set aside the contract. As is evident now, documents show that not minor deviations, but major procedural irregulaties happened, to the extent that the MoD officials complained to the Defence Minister about the PMO ‘undermining’ the negotiating capacity of the Indian Negotiating Team.
In fact, the Court noted that “it is the case of the official respondents that the INT (Indian Negotiating Team) completed its negotiations and arrived at better terms relating to price, delivery and maintenance, as compared to the MMRCA offer of Dassault. This was further processed for inter-ministerial consultations and the approval of the CCS was also obtained, finally, resulting in signing of the agreement. This was in conformity with the process, as per para 72 of DPP, 2013”.
These observations fly in the face of the new documents surfaced, which clearly show that the PMO was conducting parallel negatiations with the French negotiating team,  behind the back of the INT, thereby resulting in their weakened position. This constitutes a grave breach of the DPP, requiring an immediate enquiry into the decision-making process followed in the Rafale deal. Secondly, the issue of pricing, which already has been well-documented, wherein the Supreme Court was deliberately misled by the Government.
The judgment incorrectly noted that “the pricing details have, however, been shared with the CAG, and the report of the CAG has been examined by the Public Accounts Committee (‘PAC’). Only a redacted portion of the report was placed before the Parliament and is in public domain.” This was a complete lie, since no CAG Report on Rafale was sent to the PAC or placed before the Parliament. The CAG Report was placed in the Parliament on February 13, the last day of the budget session, but the Supreme Court was given false information that the said Report was already in public domain.
Thirdly, it has come to the knowledge that Anil Ambani had met the French Defence Minister and other officials as well as officials from Airbus on 25th March, 2015, wherein he boasted about a ‘MOU being under preparation, and signed during the Prime Minister’s visit in April, 2015. This raises serious questions of propriety, corruption at the highest levels, as well as leak of confidential defence information to private parties, which constitutes serious offences under Indian law. This becomes even more serious, since Anil Ambani incorporates his company, Reliance Defence, just days after that on 28th March, 2015, and on 10th April, 2015, the Prime Minister announced the new Rafale deal, on his visit to France, which junked the earlier deal of 126 aircrafts, and opted for a new deal of 36 aircrafts in fly away condition, with Reliance Defence as the off-set partner of Dassault.
All these reasons clearly show that the Supreme Court was misled, and given false information, in order to thwart any independent enquiry into the deal. The last few weeks have shown that the Rafale deal not only involved procedural violations, but in fact, India’s national security interests were heavily compromised by a government acting at the behest of a private party, and not in the national interest. The Supreme Court can turn a blind eye to all these developments only at the cost of its credibility. (IPA)

Thursday, 21 February, 2019