Rafale: Not Just the CAG Report, Other Glaring Anomalies in the Supreme Court Judgement
A study of the judgement points to certain factual errors in a sensitive case with grave political and national security implications.
The detailed mention of a CAG report on Rafale deal, its presentation to the PAC, comments by the PAC, presentation of a redacted version of the report to the parliament and the people finds prominent mention in Para 25 of the Supreme Court judgement of 14 December on the Rafale deal. By now, it has been established that there is no CAG report which has been prepared so far – in fact, even the exit conference, a crucial step before the finalization of the report has not been held with the defence ministry yet – but it has been used by the apex court to make its point about pricing of the Rafale aircraft.
Interestingly, the CAG report was mentioned in the court only by Prashant Bhushan when he submitted the open letter issued by retired bureaucrats demanding an early release of the CAG report on Rafale deal and demonetization. Neither was it mentioned by any government counsel or law officer, nor did it form part of the government note in a sealed envelope shared with the petitioners. It is rather intriguing that who the source of this factually incorrect information to the Supreme Court was, and how did a judge no less than the CJI Ranjan Gogoi himself, signed an order stating an obviously misleading fact.
That is a mystery which will perhaps be solved in due course, for this involves the parliament, the judiciary and the executive at the highest levels. But even beyond the non-existent CAG report, there are other major glaring anomalies in the Supreme Court judgement which deserve to be noted.
In Para 3, the judgment notes that “On 10th April, 2015 an IndoFrench joint statement, for acquisition of 36 Rafale Jets in flyaway condition through an Inter Governmental Agreement (hereinafter referred to as “IGA”), was issued and the same was duly approved by the DAC”. The DAC took the first step, approving the Acceptance of Necessity (AON) for 36 Rafale jets for IAF, on 13 May 2015 whereas PM Modi made the announcement of buying 36 aircraft on 10 April 2015. Till the time government has not accepted the need to buy 36 Rafale aircraft for IAF, how can PM or anyone else for that matter, announce it in Paris? The process only starts once DAC approves the AON, and a reversal of process has been noted in the judgement but left uncommented upon.
In Para 4, the judgement notes that, “Things remained quiet until sometime in the month of September, 2018 when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India”. It is not borne by facts on ground as the matter had been raised repeatedly before September 2018 which even included a press conference being held by the defence minister in 2017 in South Block about the deal. The report that Anil Ambani funded the French film made by Hollande’s partner, Julie Gayet also came weeks before September. The statement “claimed to have been made” was reported by MediaPart and confirmed by AFP in Canada the next day. A former French President speaking on a matter with which he has been involved closely was given due importance in the reportage.
In Para 16, the judgement quotes from the preamble of the DPP – the year of DPP is left unmentioned – to “capture the essence” of the decision-making process. But the preamble is from DPP-2016, which was promulgated well after the Rafale deal was announced and being negotiated. DPP-2013, under which Rafale deal was negotiated, had no such preamble and thus is not applicable in this case.
In Para 20, the judgement states, “The Government of France, giving only a ‘Letter of Comfort’ and not a ‘Sovereign Guarantee’ has been questioned”. But it does not delve further on a point noted by the Law ministry and the defence ministry that this means that the deal is not a government-to-government deal, as claimed by the government.
In Para 22, the judgement says that “We have also had the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing”. As evident from extensive media reports and the transcript of the interaction, there were no questions posed to the senior IAF officers on the acquisition process and pricing of Rafale aircraft.
In Para 23, the judgement observes that “It is only taking advantage of the statement by the exPresident of France, Francois Hollande that these set of petitions have been filed”. But a petition can only be filed as facts emerge, and the case of Bofors which is still alive after three decades proves that there is no time-bar on it.
In Para 25, the judgement states that “The Chief of the Air Staff is stated to have communicated his reservation regarding the disclosure of the pricing details, including regarding the weaponry which could adversely affect national security”. This is a fact which was never brought out in the Court and has not been reported in any media and as with the CAG Report, the provenance of this communication is not established yet.
In Para 32, the judgement points out that “there was possibly an arrangement between the parent Reliance company and Dassault starting from the year 2012”. Mukesh Ambani’s Reliance Group, the company Dassault signed an MoU with in 2012 is not the parent Reliance company of the Anil Ambani group, a fact which is well-known to the apex court as it been heard the legal fight between the two Ambani groups.
In Para 32, the judgement further states that “There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter”. There has been no denial by the French side of the statement made by the former French President, leave alone a ‘categorical denial’.
In conclusion, the judgement of the apex court is based on the facts supplied to it by the government or other official agencies. While the glaring error about the CAG report is embarrassing, even these other anomalies deserve a clarification to restore the confidence of the public.