The Supreme Court on Wednesday reserved its order on petitions challenging the Inter-governmental agreement between India and France for the purchase of 36 Rafale jets. Two days after the government submitted details on the decision-making process leading the award of the Rafale fighter jet deal with France, a three-judge bench, headed by Chief Justice of India Ranjan Gogoi and comprising Justices U U Lalit and K M Joseph, held a marathon 4-hour hearing on petitions seeking a court-monitored investigation into the contentious deal.
During the hearing, Prashant Bhushan questioned Reliance as the choice of offset partner, a company with no experience in manufacturing defence aircraft. Bhushan said it was contrary to the procedure laid down as the choice was not disclosed to the Cabinet, Defence Acquisition Council nor the Defence Minister. He added that the government “short-circuited” the acquisition process, as it took the Inter-Government Agreement route to avoid giving tender.
The petitioners in the case include advocate Manohar Lal Sharma, lawyer Vineet Dhanda, AAP MP Sanjay Singh and former Union ministers Yashwant Sinha, Arun Shourie and activist lawyer Prashant Bhushan.
The Centre Monday had handed over, in a sealed cover, one set of documents to the Supreme Court containing details of the pricing of the fighter aircraft. A second set was given to the petitioners in the case on the decision-making process leading to the award of the contract. The petitioners have questioned the government-to-government deal between India and France for the purchase of 36 Rafale aircraft in flyaway condition.
On the price of the Rafale aircraft, Bhushan, who appeared on behalf of himself and Sinha and Shourie, said the government was hiding behind the secrecy clause of the agreement.
In response to Bhushan, Attorney General K K Venugopal said “secrecy agreement has to be secret”. He added that if the price is made public, adversaries would be able to relate it to the equipment. The AG further asked if the court was competent to judicially review the Rafale deal, adding that the “matter is for experts to decide on, not the court”. The bench then asked for the assistance of an Air Force officer on the issue and Sir Vice-Marshal J Chalapati appeared in court to answer the questions.
The documents provided by the government Monday claimed that the delay in concluding the Medium Multi-Role Combat Aircraft (MMRCA) deal, during the UPA rule, gave India’s adversaries time to upgrade and equip their fighter fleets with advanced weaponry.
“During this long period of inconclusive 126 MMRCA process, our adversaries inducted modern aircraft and upgraded their older versions. They acquired better capability air-to-air missiles and inducted their indigenous fighters in large numbers. Further, they modernised and inducted aircraft with an advanced weapon and radar capabilities,” the government said.
When asked by the CJI about the argument of the petitioner that France had not given a sovereign guarantee to the deal, the attorney general said there was “letter of comfort” from the French President.
Regarding the contentious offset details of the Rafale deal, Justice Joseph asked the additional defence secretary as to how the country’s interests would be protected if the offset partner did not carry out production. “What was the need to amend offset guidelines with retrospective effect?,” Joseph asked. The official said that it was for the government to accept the choice made by the Original Equipment Manufacturer of the offset partner. Venugopal said that Dassault had not yet submitted details of offset partner to government.
The hearing also witnessed some light moments, when the attorney general said many lives could have been saved had there been Rafale jets in the Kargil war. “We had soldiers dying in Kargil War. If there were Rafale jets then, we could have saved lives. They could have shot over 60 km,” he said. To this, the CJI reminded the AG that the Kargil war took place in 1999-2000 while Rafale was first manufactured in 2014. “I said it hypothetically,” Venugopal replied smiling.
Last month, the bench had sought details on the pricing of the Rafale jets. “The court would also like to be apprised of the details with regard to the pricing/cost, particularly, the advantage thereof, if any, which again will be submitted to the court in a sealed cover,” the bench said, adding that “details in this regard which may be considered to be strategic and confidential may, at this stage, be placed before the court and may not be furnished to the learned counsel for the parties or the petitioners-in-person”.
The court had set November 14 as the next date of hearing.