The Supreme Court on Friday reserved its judgment on petitions seeking a review of its December 14, 2018 verdict upholding the India-France deal for the purchase of 36 Rafale jets, with the Centre asserting that the concerns raised by some members of the Indian Negotiating Team (INT) had been addressed and the petitioners were raising questions over the report of the Comptroller and Auditor General (CAG) which had given a thumbs up to the deal.
A bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph gave the parties two weeks time to file written submissions, if any.
The petitioners in the case are former Union ministers Yashwant Sinha and Arun Shourie, and Advocate Prashant Bhushan. Appearing for the petitioners, Bhushan referred to a June 21, 2016 note published by The Hindu about the concerns raised by three members of the Indian Negotiating Team (INT) about the decision-making process behind the deal. Responding to this, Attorney General K K Venugopal said that the petitioners were not saying that two additional meetings of the INT were held, where the concerns raised by the members had been addressed.
“After concerns were raised on June 1, 2016, two more INT meetings were held between the members of the INT on June 9-10, 2016 and July 18, 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 (Defence Acquisition Council),” he said, referring to an affidavit filed by the Centre.
“The concerns raised by members of the INT were deliberated 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 during these meetings,” the AG said.
Justice Joseph asked the AG if the details of the subsequent meetings could be shared.
The AG replied that he had no problem sharing it but would object for the reason that defence deals cannot be subject to the same treatment as a “contract for a highway or dam”. .
“These are deals where several other concerns must be taken into account,” he said. “In these kind non-justiciable matters, judicial review is not excluded by limited.”
Venugopal said that the CAG report had comprehensively answered the questions on pricing. He said, “We had given your Lordships the entirety of the procedure. If there was any error in interpreting it, that can’t be a ground for setting aside the entire judgement.”
Justice Joseph asked if as per the court’s earlier rulings, there was an obligation to register an FIR. The AG replied that the petitioners did not have a prima facie case for that and were seeking more documents to build their case.
Bhushan contested the CAG report and asked how the government anticipated in November 2018 while arguing the case before it that the CAG report would be redacted, when the fact was that the CAG had submitted its report in
February 2019. “How can we reply on a CAG report where the government knew in advance of three months that the pricing details will be redacted?” he asked. Bhushan also questioned the decision to waive the Soverign Guarantee and instead accept the “Letter of Comfort” provided by the French side.
On this, the AG said it was not unusual to waive the same.
Arun Shourie, who put forth arguments on an application for perjury filed by the petitioners, said defence purchases from the US were always through the Pentagon, which is why there is no sovereign guarantee in those cases.