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Sunday, Aug 25, 2019

Supreme Court reserves Rafale verdict, government stresses no corruption

In its final arguments, the government on Friday opposed reopening of the Rafale case and asked the Supreme Court to refrain from examining the deal as nowhere in the world do courts scrutinize agreements related to defence purchases.

india Updated: May 10, 2019 23:51 IST
HT Correspondent
HT Correspondent
New Delhi
A Supreme Court bench hearing the Rafale case reserved its judgement on Friday, and with the court going into recess from Monday, a judgement can be expected only after July 3 when the court reopens.
A Supreme Court bench hearing the Rafale case reserved its judgement on Friday, and with the court going into recess from Monday, a judgement can be expected only after July 3 when the court reopens. (Biplov Bhuyan/HT PHOTO)
         

A Supreme Court bench hearing the Rafale case reserved its judgement on Friday, and with the court going into recess from Monday, a judgement can be expected only after July 3 when the court reopens.

In its final arguments, the government on Friday opposed reopening of the Rafale case and asked the Supreme Court to refrain from examining the deal as nowhere in the world do courts scrutinize agreements related to defence purchases.

A bench led by Chief Justice of India (CJI) Ranjan Gogoi and comprising justices SK Kaul and KM Joseph reserved its verdict on a batch of review petitions, including the one filed by former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who have also pressed for perjury proceedings against the Centre for suppressing information. The trio claims that the court was misled by the government ahead of its December 2018 verdict that effectively gave the deal a clean chit.

The government deliberately concealed crucial notings related to the deal, including a dissent note given by three members of the Indian negotiating team, which vitiates the December 2018 verdict and necessitates a criminal enquiry into the matter, the petitioners said and asked the court to review its judgement rejecting the demand for a court-monitored probe into the purchase of 36 Rafale fighter jets.

Attorney general KK Venugopal countered the petitioners to say that a review is not permissible in such a sensitive case. He cautioned the court that a defence deal is not subject to judicial review. “So far as the price is concerned, it is covered Article 10 of the inter-government agreement. Pricing under Article 10 was not supposed to be discussed in public domain”, Venugopal told the court. When Justice Joseph put forth the petitioners’ query to the AG as to why no action was taken as per an earlier SC verdict that makes it obligatory for an investigative agency to register a criminal case if a complaint is filed before it, Venugopal said no prima facie case was made out in the Rafale case. Sinha, Shourie and Bhushan have contended that the Central Bureau of Investigation failed to act on their complaint and violated the top court’s judgement. Justice Joseph quizzed Venugopal about the absence of a transfer of technology element in the Rafale deal unlike previous deals. As per the petitioners, the earlier deal with French company Dassault Aviation was for 126 aircraft, of which 18 were to come in a flyaway condition while the remaining were to be built by the state-owned Hindustan Aeronautics Ltd through transfer of technology.

Venugopal replied that the court cannot decide on technical aspects of the deal. Responding to the judge’s question over the waiver of a sovereign guarantee, another argument raised by the petitioners, Venugopal said it was not an unprecedented practice and cited examples of inter-governmental agreements with Russia and the US without sovereign guarantees. The petitioners have said a letter of comfort by the French government is “hardly of any comfort” since it does not guarantee security against any violation.

Justice Joseph then went on to ask the AG about the dissent by three domain experts who were part of the Indian negotiating team. To that, Venugopal said the same officers had later accorded their assent. When the judge wondered if the government had any problem in placing the assent on record or make it public, the AG replied: “Why should we? Are we dealing with a contract to lay a bridge or construct a highway? We are talking about a defence contract.” Venugopal reiterated that the documents relied upon by the petitioners in their review plea were stolen. “Any material retrieved through theft should not be entertained by this court,” said the law officer.

The Congress has maintained that the new deal struck by the NDA government, which replaced an old deal negotiated by the Congress-led United Progressive Alliance (UPA), entails buying the fighter jets at a higher price. The government has denied this. The SC also said in a judgment that it doesn’t see the need for a court-monitored probe into the deal and that it is convinced due process was followed, but is now hearing a review petition on this.

First Published: May 10, 2019 23:51 IST

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