The Supreme Court today reserved its order in the petitions seeking probe into Rafale Deal..The matter was heard by a Bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph..There were four petitions and six petitioners in total – ML Sharma, Prashant Bhushan, Yashwant Sinha, Arun Shourie, Vineet Dhanda and Sanjay Singh. Below are the excerpts of the arguments by various parties..ML Sharma.The document by the Centre itself reveals there has been a serious fraud..The document says the deal for purchase of 36 aircraft was first announced and then negotiations were held..Attorney General should file a reply on an affidavit..Vineet Dhanda.How can Prime Minister make a statement regarding the purchase of aircraft before the agreement was finalised?.Sanjay Singh.Centre has not disclosed price to the Court but they have disclosed price in Parliament twice..Till March 25, 2015, the earlier deal of 126 aircraft was on. Suddenly in less than two weeks, without cancelling the earlier deal, the Centre announced the new deal..In the document submitted to Supreme Court, Centre has conveniently adopted a lot of aspects of the earlier deal while this Court sought details of the new deal..This document by the Centre is silent on whether a lot of steps involved in defence acquisitions were followed or not..The matter reached Defence Acquisition Council after the announcement of the deal by the Prime Minister..Earlier deal of requirement of 126 aircraft was assessed in 2001. If the object is to increase the capability of the Indian Air Force, then it should have been increased to 200 or 300 aircraft. Why reduce it to 36?.The deal was for seven squadrons but it has now been reduced to two squadrons.We have had instances in this country when defence procurements have run into problems, hence a policy for such procurements was put out in public domain in 2002..When there is a set procedure and procurement process had started based on it, and then there is a sudden deviation from that procedure, then will it not satisfy the judicial conscience of this court?.Can these changes be justified based on Intergovernmental Agreement?.Prashant Bhushan.The Court had flagged the issues of 1. Procedure 2. Offset 3. Pricing..However, there is also a fourth issue of circumventing of tender by going for an Intergovernmental agreement..There are three conditions for going for an Intergovernmental Agreement which are not satisfied..In a press conference held in 2015, Dassault Chairman spoke about how the deal will be signed and 108 aircraft will be manufactured by HAL in India and there will be a transfer of technology. But a few weeks later, a joint statement was issued out of the blue. As per this new statement, only 36 aircraft will be purchased and there would be no transfer of technology. Importantly, an offset also kicked in. A week after joint statement, French press reported that offset will be given to Ambani’s company and that was why the deal was changed..Nobody knew about this change, neither Cabinet nor Defence Acquisition Council, not even the Defence Minister. Offset is being given to a company which has no experience in manufacturing defence equipment or aircraft. Even the 36 aircraft envisaged in the new deal has not been delivered. Now they are holding out this mirage that the aircraft will be delivered in Sept 2019. On offset, Union has taken a stand that they don’t know who the offset partner is since it is Dassault which decides the offset partner and they will reveal it only in 2019. For the government to say that they don’t know who Offset partner runs totally contrary to the procedure laid down, since as per the procedure the offset partner has to be approved by Raksha Mantri..If this argument is accepted, it would mean that Dassault can execute offset contract with whoever it wants without even the Defence Ministry knowing about it..There are many clauses in offset guidelines which require Dassault to disclose and get approval for offset partner..Government has not disclosed anything to us on pricing citing secrecy..How does the issue of price compromise national security? It was disclosed twice in Parliament formally..If it is a matter of national security, then the Government has compromised national security twice by disclosing it in Parliament..On pricing, the government has only said that this price is better than the earlier price, but how is it?.In any case, this is covered by RTI Act and it is a bogus argument by government to say that price cannot be disclosed due to secrecy etc..Centre has said in their unsigned note that the reason for scrapping 126 aircraft deal was due to differences between Dassault and HAL. The chairman of Dassault said that Dassault was looking forward to the deal..Object of Intergovernmental Agreement was only to obviate the need for tender..The top officials have abused their authority as public servants by giving this contract to Dassault at inflated prices and by giving offset to Reliance..Reliance was chosen at the instance of the Indian government..It is therefore in the nature of a commission and constitutes an offence under the Prevention of Corruption Act..Hence, CBI has to register an FIR as per Lalita Kumari judgment and conduct a probe. This has not been done despite our complaint to CBI, hence we have approached this court..Arun Shourie.The offset clause was slipped in. A company of the experience of Dassault which was set up in 1929 would not have chosen a company here with no experience at all..Dassault itself has been in serious financial difficulty. Mr. Manohar Parrikar who was then the Defence Minister was unaware of this deal. HAL fully capable to produce aircraft. HAL has produced aircraft like Sukhoi, government statement that HAL is not capable is incorrect..Attorney General KK Venugopal for Central government.The secrecy is with regard to weaponry and avionics. If these are disclosed, our adversaries will be able to know about what weaponry and avionics we have..Due to our respect for Supreme Court, we have disclosed to the court, total price along with weaponry..What Your Lordships should consider is whether the court is competent to judicially review this on the basis of what has been submitted (by the petitioners)..For manufacture, HAL gave a time slot which was 2.7 times of what Dassault was taking; that in itself was a negative factor. The offset partner has to be selected by the vendor. Centre does not have a sovereign guarantee but has a letter of comfort. IAF has been writing to us that it will be difficult for them to defend our country due to the shortage of aircraft, we have fallen behind a lot..Questions to Attorney General and his replies.“Is the Base aircraft under new deal same as the earlier deal”, CJI Ranjan Gogoi..Yes, was Attorney General’s answer..“Was weaponry and equipment disclosed or in public domain under either the new or earlier deal”, CJI Ranjan Gogoi..“Never”, KK Venugopal..Questions to Indian Air Force Officers.When the Attorney General began his submissions, CJI Ranjan Gogoi queried about the absence of officers from Indian Air Force..“We want to meet someone from Indian Air Force, not from Ministry. After all we are dealing with Air Force”, said Gogoi J..Venugopal said that they are on their way and will reach court in some time..Later, during the post-lunch session, Air Marshall and Air Vice-Marshall of Indian Air Force arrived in court and CJI Gogoi proceeded to ask the following:.“Which is the latest induction into IAF”, CJI Gogoi..“Sukhoi 30”, was the response..“Are these and the Light Combat Aircraft fourth generation”, CJI Gogoi..“I would say its 3.5”, Air Marshall..“The new proposed aircraft is of which generation?”, CJI Gogoi..“5th generation because it has stealth technology”, responded IAF officer..Remarks by CJI Ranjan Gogoi on pricing.CJI Ranjan Gogoi remarked during the hearing that the Court won’t go into the issue of pricing of the aircraft for the time being..“It needs to be debated only if the Court decides that aspects on pricing need to come in public domain”, CJI Ranjan Gogoi..Attorney General KK Venugopal agreed to the same..The Court heard the matter from 10.30 am to 3.30 pm with a one-hour lunch break in between. The verdict was then reserved. Interestingly, no formal notice was issued to the Central government in the matter..Read the order below.
The Supreme Court today reserved its order in the petitions seeking probe into Rafale Deal..The matter was heard by a Bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph..There were four petitions and six petitioners in total – ML Sharma, Prashant Bhushan, Yashwant Sinha, Arun Shourie, Vineet Dhanda and Sanjay Singh. Below are the excerpts of the arguments by various parties..ML Sharma.The document by the Centre itself reveals there has been a serious fraud..The document says the deal for purchase of 36 aircraft was first announced and then negotiations were held..Attorney General should file a reply on an affidavit..Vineet Dhanda.How can Prime Minister make a statement regarding the purchase of aircraft before the agreement was finalised?.Sanjay Singh.Centre has not disclosed price to the Court but they have disclosed price in Parliament twice..Till March 25, 2015, the earlier deal of 126 aircraft was on. Suddenly in less than two weeks, without cancelling the earlier deal, the Centre announced the new deal..In the document submitted to Supreme Court, Centre has conveniently adopted a lot of aspects of the earlier deal while this Court sought details of the new deal..This document by the Centre is silent on whether a lot of steps involved in defence acquisitions were followed or not..The matter reached Defence Acquisition Council after the announcement of the deal by the Prime Minister..Earlier deal of requirement of 126 aircraft was assessed in 2001. If the object is to increase the capability of the Indian Air Force, then it should have been increased to 200 or 300 aircraft. Why reduce it to 36?.The deal was for seven squadrons but it has now been reduced to two squadrons.We have had instances in this country when defence procurements have run into problems, hence a policy for such procurements was put out in public domain in 2002..When there is a set procedure and procurement process had started based on it, and then there is a sudden deviation from that procedure, then will it not satisfy the judicial conscience of this court?.Can these changes be justified based on Intergovernmental Agreement?.Prashant Bhushan.The Court had flagged the issues of 1. Procedure 2. Offset 3. Pricing..However, there is also a fourth issue of circumventing of tender by going for an Intergovernmental agreement..There are three conditions for going for an Intergovernmental Agreement which are not satisfied..In a press conference held in 2015, Dassault Chairman spoke about how the deal will be signed and 108 aircraft will be manufactured by HAL in India and there will be a transfer of technology. But a few weeks later, a joint statement was issued out of the blue. As per this new statement, only 36 aircraft will be purchased and there would be no transfer of technology. Importantly, an offset also kicked in. A week after joint statement, French press reported that offset will be given to Ambani’s company and that was why the deal was changed..Nobody knew about this change, neither Cabinet nor Defence Acquisition Council, not even the Defence Minister. Offset is being given to a company which has no experience in manufacturing defence equipment or aircraft. Even the 36 aircraft envisaged in the new deal has not been delivered. Now they are holding out this mirage that the aircraft will be delivered in Sept 2019. On offset, Union has taken a stand that they don’t know who the offset partner is since it is Dassault which decides the offset partner and they will reveal it only in 2019. For the government to say that they don’t know who Offset partner runs totally contrary to the procedure laid down, since as per the procedure the offset partner has to be approved by Raksha Mantri..If this argument is accepted, it would mean that Dassault can execute offset contract with whoever it wants without even the Defence Ministry knowing about it..There are many clauses in offset guidelines which require Dassault to disclose and get approval for offset partner..Government has not disclosed anything to us on pricing citing secrecy..How does the issue of price compromise national security? It was disclosed twice in Parliament formally..If it is a matter of national security, then the Government has compromised national security twice by disclosing it in Parliament..On pricing, the government has only said that this price is better than the earlier price, but how is it?.In any case, this is covered by RTI Act and it is a bogus argument by government to say that price cannot be disclosed due to secrecy etc..Centre has said in their unsigned note that the reason for scrapping 126 aircraft deal was due to differences between Dassault and HAL. The chairman of Dassault said that Dassault was looking forward to the deal..Object of Intergovernmental Agreement was only to obviate the need for tender..The top officials have abused their authority as public servants by giving this contract to Dassault at inflated prices and by giving offset to Reliance..Reliance was chosen at the instance of the Indian government..It is therefore in the nature of a commission and constitutes an offence under the Prevention of Corruption Act..Hence, CBI has to register an FIR as per Lalita Kumari judgment and conduct a probe. This has not been done despite our complaint to CBI, hence we have approached this court..Arun Shourie.The offset clause was slipped in. A company of the experience of Dassault which was set up in 1929 would not have chosen a company here with no experience at all..Dassault itself has been in serious financial difficulty. Mr. Manohar Parrikar who was then the Defence Minister was unaware of this deal. HAL fully capable to produce aircraft. HAL has produced aircraft like Sukhoi, government statement that HAL is not capable is incorrect..Attorney General KK Venugopal for Central government.The secrecy is with regard to weaponry and avionics. If these are disclosed, our adversaries will be able to know about what weaponry and avionics we have..Due to our respect for Supreme Court, we have disclosed to the court, total price along with weaponry..What Your Lordships should consider is whether the court is competent to judicially review this on the basis of what has been submitted (by the petitioners)..For manufacture, HAL gave a time slot which was 2.7 times of what Dassault was taking; that in itself was a negative factor. The offset partner has to be selected by the vendor. Centre does not have a sovereign guarantee but has a letter of comfort. IAF has been writing to us that it will be difficult for them to defend our country due to the shortage of aircraft, we have fallen behind a lot..Questions to Attorney General and his replies.“Is the Base aircraft under new deal same as the earlier deal”, CJI Ranjan Gogoi..Yes, was Attorney General’s answer..“Was weaponry and equipment disclosed or in public domain under either the new or earlier deal”, CJI Ranjan Gogoi..“Never”, KK Venugopal..Questions to Indian Air Force Officers.When the Attorney General began his submissions, CJI Ranjan Gogoi queried about the absence of officers from Indian Air Force..“We want to meet someone from Indian Air Force, not from Ministry. After all we are dealing with Air Force”, said Gogoi J..Venugopal said that they are on their way and will reach court in some time..Later, during the post-lunch session, Air Marshall and Air Vice-Marshall of Indian Air Force arrived in court and CJI Gogoi proceeded to ask the following:.“Which is the latest induction into IAF”, CJI Gogoi..“Sukhoi 30”, was the response..“Are these and the Light Combat Aircraft fourth generation”, CJI Gogoi..“I would say its 3.5”, Air Marshall..“The new proposed aircraft is of which generation?”, CJI Gogoi..“5th generation because it has stealth technology”, responded IAF officer..Remarks by CJI Ranjan Gogoi on pricing.CJI Ranjan Gogoi remarked during the hearing that the Court won’t go into the issue of pricing of the aircraft for the time being..“It needs to be debated only if the Court decides that aspects on pricing need to come in public domain”, CJI Ranjan Gogoi..Attorney General KK Venugopal agreed to the same..The Court heard the matter from 10.30 am to 3.30 pm with a one-hour lunch break in between. The verdict was then reserved. Interestingly, no formal notice was issued to the Central government in the matter..Read the order below.
