The Centre told the Supreme Court Saturday that the Prime Minister’s Office “monitoring… the progress” of the “Government to Government” deal for the purchase of 36 Rafale fighter jets from France “cannot be construed as interference or parallel negotiations”.
In two affidavits filed in the apex court which is due to take up petitions seeking review of the December 14, 2018 judgment upholding the jet purchase deal, the Defence Ministry also stated that “the then Hon’ble Raksha Mantri had recorded on file that… “it appears that PMO and French President’s office are monitoring the progress of the issues which was the outcome of the summit meeting”.”
Key test in SC Monday
The review petitions coming up for hearing on May 6 are crucial for the government, which won the first round on December 14, 2018 when the Supreme Court upheld the Rafale purchase deal, but suffered a setback last month with the court turning down its objections to the admissibility of certain leaked documents related to the process of award of the contract to M/s Dassault Aviation. The government has said that these were “incomplete internal file notings” and that they were used selectively to convey a wrong impression of what had transpired.
The review petitioners have sought to rely on a secret note dated June 1, 2016 published by The Hindu newspaper, and later by the ANI news agency, regarding concerns raised by some members of the Indian Negotiating Team (INT).
The government termed the concerns as “incomplete internal file notings procured unauthorisedly and illegally”, and said “the petitioners are attempting to bring out internal processing of this Government to Government procurement and trying to present a selective and incomplete picture of the same”.
The Ministry said that “it is well settled by this Hon’ble Court that in governmental functioning files are generally examined/seen by various agencies and functionaries in the hierarchy. While doing so there is free and frank expression of views/candour of opinion expressed by the functionaries. These internal file notings and views contained therein are mere expression of opinion/views for consideration of the competent authority for taking final decision in the matter. It cannot form the basis for a litigant to question the final decision.”
It added that “in so far as the concerns raised by few INT members, as mandated by the DAC (Defence Acquisition Council), the INT undertook a collegiate process involving due deliberations and diligence at various levels… The concerns raised by members of the INT were deliberated, recorded and addressed, while ensuring utmost integrity and transparency in the process, allowing opinions to be freely expressed, recorded, discussed and, if necessary, modified… Aspects pertaining to the responsibility and obligations of French Government, pricing, delivery schedule, maintenance terms, offsets, IGA terms, etc. were discussed and negotiated with the French side during the INT meetings.”
The government said that “after the concerns were raised on 01 June 2016, two more INT meetings were held… on 09-10 June 2016 and 18 July 2016, respectively, wherein the concerns raised by the Members were duly deliberated and appropriate steps were taken to address these concerns. Certain concerns raised by the three members were also referred to the DAC. The INT report indicated better terms and conditions arrived at as a result of negotiation as compared to 126 MMRCA case and achievements of Negotiating Team”.
The government said that “All relevant provisions of DPP have been followed. Allegations regarding the Reliance Group are based on unsubstantiated media reports”.
The government contended that the “main reason for insistence on revelation of pricing details by petitioners has been to prove that” it “is hiding pricing details in 36 Rafale case as it has paid exorbitant price”, and added that “the CAG report clearly says otherwise”.
“Notings, letters etc. related to said procurement including the full pricing details has been made available to the CAG who has given its Report concluding that the price of 36 Rafale is 2.86% lower than the audit aligned price, apart from additional benefits which would accrue because of change from firm and fixed pricing to non-firm price”, the affidavit said, adding that the government would provide to the court any document that it wanted to see.
The Defence Ministry also accused the petitioners of making a “misleading attempt… to link routine administrative matters regarding transfer, posting of officers with the internal processing of this case”.
Any “attempt to bring this procurement under cloud will have serious impact on national security with the current security environment in the country and in neigbouring countries being well known”, it said.
The affidavit said that the court had “correctly concluded” in its December 14, 2018 judgment that the “perception of individuals cannot be the basis of a fishing and roving enquiry by this Court”. The attempt by the petitioners, it claimed, was to get a roving or fishing inquiry ordered, and that this was a “complete misuse and abuse of the legal process”.