New Delhi, Nov 13
The Supreme Court on Thursday will pronounce judgement on the Rafale deal, which was made an election issue by the Opposition citing corruption. The apex court had reserved the verdict on the deal in May this year.
Attorney General (AG) K.K. Venugopal representing the Centre argued before a bench headed by Chief Justice Ranjan Gogoi that there was no "corruption" in the Rafale deal and that the government is bound to maintain secrecy on pricing, as per Inter-Government Agreement (IGA) signed between India and France. The AG had insisted that the world over, defence deals are not examined in a court of law.
Referring to the Rafale deal as a question of national security, the AG had told a bench headed by Chief Justice Ranjan Gogoi, "We have signed an IGA, which we are obliged to follow. Rafale is not for ornamentation. It is essential for protection of each and every one of us....nowhere in the world such matters go before the court."
The AG also told the court that in accordance with Article 10 of the IGA, the pricing in the deal cannot be disclosed. "In this matter, the secrecy clause of the inter-governmental agreement between India and France, pertains to defence deals and not to the award of contract for construction of flyover or dams...," said the AG, insisting on the dismissal of review petitions.
Former Union ministers, Yashwant Sinha and Arun Shourie, and activist lawyer Prashant Bhushan, who have filed the review petitions, contended before the top court that it should set aside December 14, 2018, verdict, which dismissed their plea for criminal investigation into the Rafale deal. Later, the apex court reserved verdict on a batch of petitions seeking review of its December 14 judgement.
Bhushan told the various aspects -- alleged suppression of material facts -- have been hidden from the court, and an FIR should be registered to undertake criminal investigations. He also pointed out a three-member Indian Negotiation Team (INT) had objected to the parallel negotiations undertaken by the PMO, and as a consequence, allegedly the deal became expensive.
The AG objected to the review petition and said the basic grounds for seeking review of the December verdict were similar to the main petition, which was not allowed by the apex court. The top law officer also rubbished the allegation of the petitioners that the Centre played a fraud on the court regarding the information on the deal. "The petitioners are seeking review on the base of stolen documents...they committed theft by accessing incomplete file notings of the government departments," said the AG.
Bhushan had argued that eight critical clauses, including the one on anti-corruption, were dropped on the deal, and also ignored the objection of three experts on pricing of the aircraft deal. "The Centre should place the entire file of the negotiations team before the court...for the deal to go through. The Centre also breached the ceiling price. The French government issued a letter of comfort, which was not of any comfort", argued Bhushan before the court.
Shourie, who briefly argued, informed the court that it has been misled, and although the government has given all the documents regarding the deal to CAG, "why can't they share them with the court?" he asked.
Shourie also shared a document published on the Ministry of Home Affairs' website which mandates the government to share information on defence deals. The AG argued that the document is old, and in accordance with IGA, which was signed in September 2016, the government has to oblige its terms regarding secrecy.
The AG also informed the court that the Rafale deal has come to a fruition stage after many years, and if at all any delay is caused, developing a new Request for Proposal (RFP) and then floating the same; it will take another 5 years.
Bhushan slammed the government that in an unprecedented step, it had redacted the CAG report. "We are not in favour of the cancellation of the contract, but the criminal investigation should be made by CBI into the deal... Ultimately, the deal went ahead without any guarantee, no bank guarantee or sovereign guarantee," Bhushan vehemently argued.
The court fired a volley of queries at the AG regarding the deal. It first queried AG on the aspect of registration of the FIR. "There should be a prima facie cognizable offence", the AG replied.
The court then raised another query on the aspect of transfer of technology and the advantages of the same, which was an integral component of the deal under negotiation during the UPA. "Who is to decide that? Will this court decide?" asked the AG. Then, the court asked about the sovereign guarantee. The AG cited precedents with Russia and the US, where bank guarantee was waived for defence deals.
Finally, the court asked the AG's opinion on the dissent of three domain experts. "They examined the whole aspect. The concerns raised by the three members were referred to Defence Acquisition Committee....Eventually, they agreed," replied AG. At the end of the hearing, the AG said he can produce the documents related to the consent of the officials before the court.
