Modi’s authority to ink Rafale deal questioned at SC hearing

New Delhi: Charges and counter charges flew thick and fast during the high-voltage hearing in the Supreme Court on Wednesday on the pleas seeking a court-monitored probe into the Rafale deal. The proceedings saw trading of charges between the Centre and the petitioners, who questioned the authority of Prime Minister Narendra Modi in inking the pact with France to import Rafale fighter jets.

The arguments before a bench headed by CJI Ranjan Gogoi were made two days after the government had told the apex court that it had “completely followed” the defence procurement procedure laid out in 2013 and approval of the cabinet committee on security (CCS) was secured before the deal was inked with France. Activist lawyer Prashant Bhushan, who along with former BJP veterans Yashwant Sinha and Arun Shourie has filed a plea in the matter, alleged that there was a “gross violation” of procedure in the deal that warranted a CBI investigation.

Questioning the inking of inter-governmental agreement (IGA) between India and France for purchase of 36 Rafale jets, Bhushan claimed it was done to circumvent the mandatory requirement of issuing tenders for defence procurement under the request for proposal (RFP).

Attorney general KK Venugopal opposed the submissions and denied any violation in the deal. He said IGA was necessary to meet the urgent requirement of the IAF to get 36 advanced fighter aircrafts for two squadrons of the force. Venugopal also raised serious objection to Bhushan's arguments on secrecy pact between India and France saying, “Secrecy agreement has to be secret and how is he producing it in court?”

To this, the CJI told Bhushan, “We are giving you full hearing. Use this opportunity carefully and cite only those things which are necessary.” Bhushan alleged that the government’s contention that IGA would help in getting delivery of fighter jets soon was “wrong” and “bogus” as the first aircraft would be delivered next year and it would go on till October 2022.

“The matter of 36 Rafale planes had never gone to the IAF. Now, they have issued tenders for 110 more planes. Who took the decision to procure 36 jets instead of 126 (as required by the IAF)? How the prime minister announced it? He has no authority to say or decide this,” Bhushan claimed before the bench, which also comprised justices SK Kaul and KM Joseph. The government, he alleged, has not disclosed that under the defence procurement procedure, there were only three conditions in which an IGA route could be resorted to for such deals.

Detailing the three conditions, Bhushan claimed IGA could be entered into only if an equipment of proven technology was identified by forces in joint exercises, large value weapon platform was available at a much lesser price and the original equipment manufacturer was facing an embargo on sale. “None of the three conditions were satisfied in this deal,” he alleged and referred to the two issues flagged by the law ministry – absence of sovereign guarantee by France and international arbitration clause in IGA as per which the arbitration seat would be at Geneva. On the aspect of pricing details of Rafale jets, Venugopal said it could not be made public due to the secrecy clause in the agreement and moreover, the disclosure would give advantage to India’s adverseries.

“I decided not to peruse it (pricing details) myself as in a case of any leak, my office would be held responsible,” he said. Venugopal said these matters are for experts to deal with. “We have been saying that even Parliament has not been told about the complete cost of the jets,” he said. The bench told him there was no question of any debate on pricing unless the court decides to make them public. Veteran journalist and former Union minister Arun Shourie also addressed the court and claimed that he has perused the details pertaining to the Rafale deal with Dassault Aviation.

He also claimed that former defence minister Manohar Parrikar had earlier said in an interview that 126 Rafale jets would cost around Rs 90,000 crore and the decision to procure 36 jets was made by the prime minister as a result of political discussions between him and the then French President. He alleged that a Reliance firm, which came into being days before inking of the deal, has been given the contract of being the Indian offset partner of Dassault.

Advocates ML Sharma and Dheeraj Singh and senior advocate Sanjay Hegde also advanced arguments in the case for the petitioners.