Back on the public radar

The resolute responses to the government's explanation over questions raised in the review petition by the Chief Justice-led 3 member bench brought back Rafale into the radar of public eye after it was temporarily eclipsed by Pulwama & Balakot episodes which brought national security to the forefront. In the review petition of the Rafale Verdict of December 14, 2018, the top court gave a clean chit to the Modi government on the procurement of 36 Rafale jet fighters in a ready-to-fly condition from French company Dassault Aviation. KM Joseph, one of the judges in the 3-member bench, sidelined the government's attempt to avert a CBI probe on Rafale by citing the use of Pakistan's F-16 in recent aerial combat between the neighbouring states – asserting how Pakistan has superior aircraft and how vulnerable India is. "There will be damage done to the country by seeking a CBI inquiry", said Attorney General KK Venugopal, representing the government. Joseph asked Venugopal if the government would take refuge under the garb of national security when allegations of grave crime and corruption in the Rafale deal hover. The government informed the Supreme Court that the documents related to the contentious Rafale fighter jets deal were stolen from the Ministry – pointing fingers at retired or current public servants. It argued how the review and perjury petitions must be dismissed on the pretext of a violation of the Official Secrets Act on petitioner's part which corroborated the petitions based on the classified documents published by The Hindu on February 13, 2019. Attorney General KK Venugopal cited how it objects a preliminary because secret documents can't be annexed with the petition. It assured the apex court that the government is investigating how these documents were stolen. The pre-lunch proceedings largely saw the government try to condemn an attempt to probe Rafale and carefully point out infringement of law per se by corroborating documents which can be in public domain to the review petition. However, the apex court dismissed both of Venugopal's crafted arguments simply by stating how "the law of the country has been broken by corrupted practices in this issue and even stolen evidence can be looked into, provided it is relevant and authentic". Reiterating how Rafale fell outside the judicial purview, the government remained more concerned with how stolen documents were being used to corroborate accusations instead of answering the peculiarities highlighted from those documents. Responding to the grave accusation, in layman's understanding, remains important than the fact how the evidence, which corroborates the accusation, has been procured. The government cited that investigation was being done on how these classified documents were stolen and while that remains absolutely necessary but falls second to the issue in consideration. Justices KM Joseph and SK Kaul had to reiterate their point after being once again pestered by the government that the court can not consider the documents in question unless its source is known and it is lawful. The two judges explained it to the government how the court reserves the right to decide if it should look into the documents or not irrespective of its nature of procurement. The petitioners– Prashant Bhushan and Arun Shourie, aptly equipped to counter the government's argument, cited how the documents were obtained from a whistleblower, which had been the case in the infamous Coalgate and 2G scams as well. The apex court adjourned the matter to March 14 with the government promising the submission of investigation report in its argument of stolen documents, which faintly affects the proceedings in this review petition that has presumably cornered the government, inciting suspicion fueled inquisitiveness over the Rafale deal and the jet's pricing. Meanwhile, The Hindu, in its latest addition on the investigative journalism in Rafale deal, reported that the deal proved more expensive for India due to France's denial in providing Bank Guarantees (BG). According to the newspaper, the deal signed by PM Modi in 2016 for the 36 fly-away Rafale jets along with weapons package was more expensive by around Rs 1,963 crore (Euro 246.11 million) than the estimated cost of 126 jets deal negotiated by the previous UPA government. In a quoted report of the Indian Negotiating Team (INT) to the defence ministry on July 21, 2016, the contents reveal how a parallel negotiating track weakened India's position in the parley. In the submission made to the SC, the government had argued that it had obtained the deal on "better terms" than what had been estimated in the preceding MMRCA one. The CAG's performance audit report, which left the calculated cost of BG out of the tabulation while stating that the Modi government's deal was 2.86 per cent lower than the UPA bid for the French jet, supported the government's "better terms" stance. Had the government concerningly started the review petition proceedings from here and responded to the revelations of parallel parley by the Prime Minister's Office along with details of pricing, which included BG, the apex court's time spent on this issue of national interest would have been better utilised and may have even proven pivotal.