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Rafale 2.0: No investigation is no justice

By Professor Ujjwal K Chowdhury. Dated: 11/20/2019 1:10:59 AM

"Petitioners can approach the CBI for registering an FIR provided the CBI gets nod from the government as per the Prevention of Corruption Law." This keeps the door open for CBI investigation, and surely by Joint Parliamentary Committee, which is a normal process as seen in Bofors and 2G cases as well during Congress rule.

Supreme Court's Stand in 2018 & 2019:
Exactly ten months later, a Supreme Court bench, comprising Chief Justice of India Ranjan Gogoi, Justices S K Kaul and K M Joseph, dismissed petitions on November 14, 2019, seeking review of its December 14, 2018 verdict, where it rejected a court-monitored investigation into the vexed Rafale deal.
And naturally it has been construed as a major relief for Modi-government and the ruling party is rejoicing while ridiculing the opposition and the body of lawyers who asked for the review.
Surely it is a political setback for the opposition in general and Rahul Gandhi in particular and questions can be raised whether Congress put the cart before the horse and committed a political blunder in coining the slogan 'Chowdkidar Chor Hai.'
Still questions still remain with regards to the controversies connected to the deal and the issue will haunt the government till there is a closure in real and ultimate sense which can only come through a thorough investigation.
Door Still Open for Investigation:
First, it is important to note while Justices Ranjan Gogoi and S K Kaul have decried any need to doubt pricing process and denounced 'fishing expedition', interestingly, Justice Joseph, in a separate judgement, agreed with the Chief Justice and Justice Kaul but said, "Petitioners can approach the CBI for registering an FIR provided the CBI gets nod from the government as per the Prevention of Corruption Law." This keeps the door open for CBI investigation, and surely by Joint Parliamentary Committee, which is a normal process as seen in Bofors and 2G cases as well during Congress rule.
Second, though the Court summarily dismissed the petitions for review, it has not answered several issues raised by the petitioners. Courts earlier verdict last December was based on a sealed envelope given by the government which the petitioners never got and had raised objection to it. The government noted then noted that a CAG report was put before the Court and it had claimed that the Rafale deal was 2.86% cheaper as finalized by the NDA government than what was finalized by the UPA government. But the CAG Report was never put before the Public Accounts Committee, headed by Congress leader of opposition Mallikarjun Kharge. Hours after CAG's Rafale report was tabled, Rahul Gandhi and petitioners noted that it had failed to mention the dissenting note by negotiators, which, they said, had "demolished" the government's claims on price and delivery schedule (dissenting note published in The Hindu). The opposition also mentioned in 2018 that the current CAG is Rajiv Meharshi, who was the Financial Secretary of government of India and had signed the Rafale Deal himself, and hence there is a conflict of interests. He cannot audit a deal to which he is a party.
Doubtful Secrecy and Parallel Negotiations:
Third, the government always maintained that there was a non-disclosure agreement between India and France about the deal and its pricings, which was negated by the French President later. Clauses 5 and 6 of the inter-government deal speaks that the government will take efforts to bring the opposition on the same page on this issue, which is a common procedure in Western democracies, France being one. That the leader of the opposition in the Parliament cannot be given the details of the pricing of a deal costing India Rs. 59,000 crores is a matter of suspicion.
Fourth, the Supreme Court's remarks on the pricing of the Rafale aircraft are important: "Insofar as the aspect of pricing is concerned, the Court satisfied itself with the material made available. It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation." However, the Court did not take into account investigations by The Hindu daily that there was a parallel negotiation by the Prime Minister's Office with the French officials and those of the supplying firm Dassault, along with the official military-bureaucrats' team negotiating, contrary to the norms and the standard operating process. Putting forth a note of November 20, 2015 of the then Defence Secretary G Mohan Kumar, The Hindu paper and veteran editor N Ram claimed that PMO was running a parallel negotiation with the French side even when Ministry of Defence (MoD) was in advanced stage of negotiations. On the other hand, the government submitted to the Supreme Court in October 2018 that only Deputy Chief of Air Staff was leading the 7-member MoD team in the negotiations.
Altering Numbers of Jets & Pricing:
Fifth, the 2012 negotiation done by the UPA reached a conclusion to buy 126 Rafale fighter jets of which 18 shall be in fly-away condition, rest built in India along with the PSU, Hindustan Aeronautics Limited, at an average cost of Rs. 526 crore per jet for the entire lot. But, four years later, after year long negotiations, NDA government led by Modi brought the number of jets down to 36 only with 300% escalation of prices, amount Rs. 1690 crores per jet, for a total of Rs. 59,000 crores investment by India, all of which would be delivered in fly-away condition, offsetting 50% of the costs in India with major partner being Reliance (Anil Ambani led). In the new deal, Dassault has chosen Reliance Defence of Anil Ambani to be the offsite partner for 36 jets, and Dassault was mandated to make compensatory investments in India worth 50% of the total cost of the deal. Questions are hence raised about 300% hike in three years (in spite of additional features), choice of Reliance with no experience in defence production, and that too several groups companies of Anil Ambani group going bankrupt, and the decision to deprive a PSU with experience of aircraft production (military included) from gaining from such a large government inked deal. And denying even an investigation on the basis of such questions almost amounting to denying of natural justice.
Sixth, though it was a government to government deal, but was being executed and partnered by a private firm Dassault. Surprisingly, there is no bank guarantee, no sovereign guarantee and no Escrow account in this case. Even a student loan of Rs. 5 crores has a collateral guarantee and this is a humongous deal of Rs. 59,000 crores!
Seventh, the Supreme Court said there has been a necessity for fighter aircraft and the country cannot remain without jets. The apex court noted the need for induction of 4th and 5th generation of fighter aircraft like Rafale in the Indian Air Force. The military establishment, the political parties and the public opinion in general also is with this stand. Then why were 126 jets reduced to 36 only? Is there no prima facie case of raising suspicion? And is it not natural justice to allow a thorough investigation to settle such a suspicion? Law says that since citizens do not have the wherewithals to investigate and on such a specialized case, is it not a fit case for investigation?
Crony Capitalism:
Eighth, Former President of France, Francois Hollande, who signed the inter-governmental agreement on Rafale in Sept 2016, also told to AFP and published in Le Monde that the government of India had given no choice other than Reliance Defence to be partner. Some media note that he retracted partially next day.
Ninth, Anil Ambani's Reliance Group incorporated a defence company just few months before Modi announced the new Rafale deal, a coincidence that has caused some eyebrows to be raised. Ambani also accompanied Modi to France on the same visit that led to the announcement of the deal. Also, media investigations now show that Anil Ambani had visited advisers of French Defence Minister days before he had gone with Modi to Paris for this deal. Crony capitalism hence is a natural criticism here.
Tenth, Bofors and 2G scams were never proven in the court of law and a Joint Parliamentary Committee in case of Bofors gave clean chit to the then Rajiv Gandhi government. But Congress governments in both cases lost in the subsequent elections based on these scams. Now that serious doubts have been raised, and the Supreme Court though rejecting court monitored probe, has not closed the doors of any probe (like JPC or SIT), the nation must know the truth through a thorough and impartial investigation into this issue.
The author is currently Pro Vice Chancellor of Kolkata based Adamas University, and a regular commentator and television analyst.