Supreme Court reserves order after marathon, 4-hour Rafale hearing. The suspense continues...

Chief Justice of India summons IAF officers to testify, unwilling to accept MoD responses

By Ajai Shukla

Business Standard, 15th Nov 18

In the Supreme Court (SC) on Wednesday, a three-judge bench comprising Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph spent over four hours hearing a group of petitions filed against the government’s purchase of 36 Rafale fighters for Euro 7.85 billion (over Rs 600 billion) in September 2016.

Former Union miniters Yashwant Sinha and Arun Shourie and lawyer-activist Prashant Bhushan, who have filed a petition in the matter, demanded that the Central Bureau of Investigation (CBI) be ordered to register a First Information Report (FIR) and investigate “criminal misconduct by high ranking public servants” in cancelling the on-going tender for 126 Rafale fighters and instead buying 36 fighters at an allegedly inflated price. Other petitioners include Manohar Lal Sharma and Aam Aadmi Party legislator Sanjay Singh.

The petitions also alleged that Euro 3.9 billion (Rs 317 billion) worth of offsets that arose from this contract were improperly awarded, much of it to Anil Ambani’s Reliance Group.

At the culmination of daylong arguments, the bench announced that the hearing was concluded, and reserved judgement in the cases. That means that the court would pronounce judgement at a future date, which would be intimated later.

The petitioners’ verbal arguments in court on Wednesday centred on the government’s written response to the petitions, which it had submitted on Monday in accordance with the SC’s order on October 31. In response, the petitioners submitted their written arguments on Wednesday morning.

The government’s submission had three parts. The first part addressed the decision-making that led to the contract with French firm, Dassault, for 36 Rafales. A second part explained the process followed for the award of offsets. Both these were shared with the petitioners, as per the SC’s order. A third part related to the contract price, which the government submitted in a sealed cover to the Court, citing secrecy.

Attorney General KK Venugopal claimed that even he had not looked at the Rafale pricing. “I decided not to peruse it myself as in a case of any leak, my office would be held responsible,” he said.

In his arguments, Prashant Bhushan challenged the government’s assertion that the 36-Rafale contract did not follow the standard procurement process because New Delhi had signed an Inter-Government Agreement (IGA) with Paris due to “geo-strategic advantages that are likely to accrue to the country.” 

Bhushan contended that none of the three conditions for an IGA purchase, specified in the Defence Procurement Procedure of 2013 (DPP-2013) that governs the Rafale contract – were met. The first condition allows an IGA when “equipment of proven technology and capabilities… is identified by our armed Forces while participating in joint international exercises.” A second condition permits an IGA “when a very large value weapon system/platform which was in service in a friendly foreign country is available… normally at a much lesser cost than the cost of the original platform/weapon.” The third condition is when the seller country “might have imposed restriction on [a weapon’s] sale and thus the equipment cannot be evaluated.”

Next, Bhushan pointed out that the Law Ministry had flagged two objectionable issues with the 36-Rafale contract document that was referred to it. First, the French government refused to provide sovereign guarantees that it would back the contract through the lifetime of the Rafale fighter. Additionally, the contract specified that the arbitration of any dispute that arose would be conducted in Geneva, not in India.

In response, Venugopal admitted that, while Paris had not provided sovereign guarantees with the Rafale contract, it had provided a “Letter of Comfort”.

In contract law, a “Letter of Comfort” conveys a party’s willingness to discharge contractual obligation, but absent the elements of a legally enforceable contract.

The petitioners’ arguments also focused on the allegedly unilateral decision taken by Prime Minister Narendra Modi just before his meeting with French President Francois Hollande in Paris on April 10, 2015, when both leaders announced that India would get the Rafale.

“Nobody – not Defence Minister Manohar Parrikar, not Foreign Secretary S Jaishankar, not Dassault chief Eric Trappier, not the Indian Air Force (IAF)  and not Hindustan Aeronautics Ltd (HAL) – knew the contract was being changed from 126 fighters to 36 fighters, from Make in India to flyaway condition and with the offsets given to Anil Ambani,” said Bhushan.

In an unusual move, the Chief Justice asked for IAF officers to appear in Court and answer questions.“We are dealing with requirements of the air force and would like to ask an air force officer on the Rafale jet. We want to hear from an Air force officer and not the official of the Defence Ministry on the issue,” said Gogoi.

Eventually, three senior air marshals appeared in court, including the IAF vice chief. In response to Gogoi’s questions, they admitted that HAL was currently building two types of fighter aircraft – the Sukhoi-30MKI and the Tejas Light Combat Aircraft. 

Surprisingly, when asked by Gogoi which generation fighters these were, the IAF officers claimed they were only Generation 3.5 fighters. In fact, the Sukhoi-30MKI is globally recognised as a Generation-4 fighter and is invariably introduced as such by the IAF in air shows and exhibitions like Aero India.

There has been criticism over the Chief Justice’s unwillingness to accept arguments from a defence ministry civilian and his insistence on calling serving air marshals.

“The Chief Justice of India calling air force officers to testify is a low point in Indian constitutional law. This is a violation of civilian supremacy and sets a dangerous precedent,” said Pratap Bhanu Mehta, Vice Chancellor of Ashoka University.