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SC reserves order on pleas seeking court monitored probe in Rafale deal, Centre defends secrecy clause

During the hearing on Wednesday, the Centre defended the secrecy clause related to the pricing of the 36 Rafale fighter jets and said it cannot divulge details of the deal.

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New Delhi Updated on: November 14, 2018 23:56 IST
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SC reserves order on pleas seeking court monitored probe in Rafale deal, Centre defends secrecy clause

The Supreme Court on Wednesday reserved its order on pleas seeking court monitored probe in procurement of 36 Rafale fighter jets from France. A bench comprising Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph concluded the arguments advanced by various parties which have also sought registration of FIR in connection with the alleged irregularities in the deal. 

During the hearing on Wednesday, the Centre defended the secrecy clause related to the pricing of the 36 Rafale fighter jets and said it cannot divulge details of the deal.

These matters are for the experts to deal with and "we have been saying that even Parliament has not been told about the complete cost of jets", Attorney General KK Venugopal told a bench headed by Chief Justice Ranjan Gogoi. 

The top law officer said the Centre has given in a sealed cover the complete details of the Rafale jets, the weapons to be fitted on the aircraft and other requirements.

Watch: SC reserves order on pleas seeking court monitored probe in Rafale deal

The Centre on Monday had submitted to the apex court in a sealed cover, the pricing details of the Rafale jets. 

Also read | Rafale deal: Defence Procurement Procedure followed in procurement of 36 fighter jets, says govt doc

Venugopal also told the apex court that the court is judicially not competent to decide what aircraft and weapons are to be bought as it is a matter for experts.

Defending the secrecy clause related to the pricing of the Rafale jets, he said,"Our adversaries may get advantages if the entire details on the pricing is disclosed."

Refusing to divulge details on the pricing aspect, Venugopal said he would not be able to assist the court further on the pricing issue. 

"I decided not to peruse it myself as in a case of any leak, my office would be held responsible," he said.

While the Centre was making a submission on the issue of pricing, the bench, also comprising justices S K Kaul and K M Joseph, said any discussion on pricing of the Rafale fighter jets can only take place if the facts on the deal are allowed to come in the public domain.

"The decision we need to take is whether to bring the fact on pricing in public domain or not," the bench said.

The top court told the attorney general that without bringing the facts in public domain, there was no question of any debate on the pricing of the planes. 

However, the bench clarified to the law officer that any discussion on price will be considered if it thinks that it should come in the public domain.

During the hearing, Venugopal said at the exchange rate of November 2016, the cost of a bare fighter jet was Rs 670 crore.

India signed an agreement with France for the purchase of 36 Rafale fighter aircraft in a fly-away condition as part of the upgrading process of the Indian Air Force equipment. 

The estimated cost of the deal is Rs 58,000 crore.

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

Venugopal said earlier, the jets were not to be loaded with requisite weapons system and the reservation of the government was due to the fact that it did not want to violate the clause of the Inter Government Agreement and the secrecy clause.

He also told the court that presently three countries France, Egypt and Qatar are flying Rafale fighter jets.

On the issue of lack of sovereign guarantee, the attorney general said though there is no sovereign guarantee, but there is a letter of comfort by France which would be as good as a governmental guarantee.

Venugopal concluded his argument saying that Rafale aircrafts are potent and "had we possessed Rafale during the Kargil war, we could have avoided huge casualties as Rafale is capable of hitting targets from a distance of 60 kms".

To this the bench said,"Mr. Attorney, Kargil was in 1999-2000? Rafale came in 2014."

The top law officer replied, "I said it hypothetically". 

Petitioners' arguments 

Meanwhile, senior SC lawyer Prashant Bhushan, appearing on behalf of himself and former Union ministers Yashwant Sinha and Arun Shourie, alleged that the government was hiding behind the secrecy clause and has not disclosed price of the Rafale jets. 

During the hearing, Bhushan said the price per aircraft was 155 million Euro and now, it was 270 million Euro. This shows that there was hike of 40 per cent in its price, the advocate said.

He said the CBI is bound to register an FIR in this case. 

The lawyer alleged that there was a conspiracy with French company Dassault, which granted the offset right to Reliance, and it amounts to gratification and constitutes an offence.

He said Reliance has no competence of executing the offset contract.

Bhushan said the petition by them has been filed after the CBI did not register the FIR under the Prevention of Corruption Act.

He said this matter needs an investigation and argued that how can somebody say there was no need of the court-monitored probe.

Bhushan quoted ex-French president François Hollande and other Dassault officials to impute criminal motive in granting the offset contract to Reliance.

FIR is the legal requirement of the law and this court should order registration of the FIR, he added.

The activist-lawyer submitted that the NDA government "short circuited" the acquisition process by taking the Inter Government Agreement (IGA) route to avoid giving tender.

He said there was no sovereign guarantee from the French government in the deal and argued that initially the Union Law Ministry flagged the issue and later gave in to the proposal of entering into IGA.

Bhushan, referring to the process of defence acquisition, said the Air Force needed 126 fighter jets and had intimated it to Defence Acquisition Council (DAC).

He said initially, six foreign companies had applied and two firms were shortlisted during the earlier process.

Later, the deal went to French firm Dassault and state-owned Hindustan Aeronautics Ltd was part of it. But, suddenly a statement was issued which said there will be no technology transfer, and only 36 jets would be procured, the lawyer told the court.

Bhushan submitted that nobody knows about the alleged change in the deal done by the prime minister, and even the defence minister was not aware about the change.

Advocates ML Sharma, Vineet Dhanda and AAP MP Sanjay Singh, also advanced their arguments before Bhushan.

Sharma, who opened the argument, told the court that the IGA was "illegal" and sought an investigation into the matter.

Dhanda sought a proper reply from the Centre on his plea questioning the Rafale deal.

AAP leader's counsel Dheeraj Singh asked as to why the government reduced the deal of 126 jets to 36. 

He said the government should have increased the number of jets when there was a concern that adversaries were inducting more fighter jets.

Bhushan also raised the same point as Singh and said three and a half years have passed since the deal was signed on 36 Rafale jets but no aircraft have been received till now.

The first jet is to be delivered in September 2019 and delivery to continue till 2022, he said.

"If the 126 aircraft deal was still on, at least 18 jets would have been delivered by April 2019," he submitted.

The petitions in the matter have been filed by advocates M L Sharma, Vineet Dhanda. Later, AAP MP Sanjay Singh also filed a petition. Former Union ministers Yashwant Sinha, Arun Shourie and activist lawyer Prashant Bhushan also filed a joint petition. 

Reliance in previous statements has said the Indian government, French government, Dassault and Reliance have clarified on multiple occasions there was no offset contract for Rs 30,000 crore to Reliance as alleged by the Congress. 

(With inputs from PTI)

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