Supreme Court Ruling On Rafale Deal: Rahul Gandhi Should Read Full Judgement And Accept He Has No Case

Supreme Court Ruling On Rafale Deal: Rahul Gandhi Should Read Full Judgement And Accept He Has No CaseCongress president Rahul Gandhi speaks during a press conference at AICC, on 14 December 2018 in New Delhi, India. (Amal KS/Hindustan Times via Getty Images)
  • Rahul Gandhi addressed the media in the wake of the Supreme Court judgement on the Rafale deal.

    Despite the judgement finding no reason to suspect the deal, Rahul and members of his party went on the offensive against the government.

    Perhaps he may do well to go back and read the judgement in full to know he has no case at hand.

The results of the five state assembly elections this week, when the Bharatiya Janata Party (BJP) drew a blank, has made Congress president Rahul Gandhi more aggressive. Otherwise, there is no reason why he would continue to mislead the country on the Centre’s decision to buy Rafale aircraft for the Indian Air Force from France’s Dassault.

Not just Gandhi but opposition parties, too, have tried their best to run down the Supreme Court ruling on petitions challenging the purchase of 36 Rafale jets in flying condition from France. This only makes one thing clear – the Congress and some of the Opposition parties are hell bent on discrediting the current National Democratic Alliance (NDA) government led by Narendra Modi.

During a press conference after the Supreme Court’s verdict dismissing the petitions challenging the purchase of Rafale jets, Gandhi said: “SC (Supreme Court) judgement has a line that Rafale pricing was discussed in PAC (public accounts committee). But PAC has not received the report.”

The fact is that Gandhi, his Congress party, the opposition, and critics of the government are trying to pull the wool over our eyes on what the apex court has said on the whole affair. The Supreme Court says the pricing details have been shared with the Comptroller and Auditor General (CAG) and the report of CAG has been examined by the PAC.

This is what Gandhi and others have latched on to again to try and run down the Modi government. They should know that in no way the judgement relies on this and the judges have thoroughly gone into the whole aspects of the deal. The judges in further examining the detail are clear about the whole deal. What do the judges say?

The judgement by the three-member Supreme Court bench, headed by Chief Justice Ranjan Gogoi, further says:

... The pricing details are stated to be covered by Article 10 of the IGA (Inter-Government Agreement) between the Government of India and the Government of France, on purchase of Rafale Aircraft, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience.”

There are two issues to be noted here. One, the Modi government had adhered to the classified information protection as signed by the United Progressive Alliance (UPA) government in 2008 that was headed by Gandhi’s party. Second, despite its reluctance, the Modi government had done its best to place the details before the court to clear the air or, as the ruling says, “to satisfy its (Court’s) conscience”.

Also, the role of CAG or PAC is post-procurement and not pre-procurement. This is something the critics don’t want to accept or concede.

The judges go on to add:

We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP as well as under the IGA. We have also gone through the explanatory note on the costing, item wise. Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircraft. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package.

What the Supreme Court says is that it has scrutinised the request for proposal (RFP) documents of the UPA government and the IGA signed by the Modi government, and it agrees with the officials’ contention that the country stands to commercially gain from the deal.

The judges also say that it is not their job to carry out a comparison of the pricing details and caution: “We say no more as the material has to be kept in a confidential domain.”

Gandhi, in particular, has been unsparing in his attack on Modi, calling him chor (thief). It doesn’t behove of a leader who is vying for the prime ministerial chair to make such allegations and call such names.

Someone can say that his father Rajiv Gandhi was also labelled in a similar way, but then it was a case of a child picking up something that had been uttered at home and parroting that on air on All India Radio. Subsequently, as the lid came off the Bofors deal, people latched on to this. No one in the opposition, be it V P Singh or Atal Bihari Vajpayee or L K Advani, ever called Rajiv Gandhi what his son now calls Modi.

For some odd reason, Gandhi and the Congress are trying to link Modi and Ambani on the offset agreement. This despite the Supreme Court finding no fault with the Indian Offset Partnerships (IOP).

Conceding that the IOP had triggered the litigation in the Supreme Court against the Modi government, the judgement says the offset contracts will commence from October 2019. The judges found that a press release, “Clarification on Offsets policy”, issued by the government on 22 September this year is in conformity with the clause on IOPs, allowing the manufacturer of the aircraft to decide on partnerships.

The press release and the clause say that the vendor (Dassault, in this case) has to provide details of IOPs at the time of seeking offset credit or a year before discharging its offset obligation.

Referring to the allegations of petitioners, the court said the Indian government’s role will come into play only after Dassault submits a formal proposal in proper format and thus no role has been assigned to the Centre now.

Pointing to the Defence Procurement Procedure, formulated in 2013, the judgement said it envisaged that the vendor will choose the IOP and mere press interviews or suggestions cannot form the basis of judicial review. This was particularly important when the statements had been denied in the press.

In the final analysis, the judges sum up thus:

We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose the IOP does not rest with the Indian Government.

In its conclusion, the bench, which also included justices Sanjay Kaul and K M Joseph, said the court found no reason for intervention on the three issues – decision-making, pricing and IOP – after having heard the petitioners in detail. Stating that the purchase of the 36 Rafale aircraft was sensitive, the judgement said “perception of individuals cannot be the basis of fishing and roving enquiry by this court”.

Despite the court being clear about the whole deal, Gandhi and the members of his party are unrelenting. One only wishes that the entire lot that is now trying to criticise the ruling has read the entire judgement. There are some parts in there that notably uphold the government’s decision on the deal.

In particular, the judges said they had studied the materials presented before them carefully and they were satisfied that there was nothing to suspect the process. They added that there was no doubt about the need for aircraft and its quality had not been questioned.

Further dwelling on this issue, the judgement said:

It is also a fact that the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RFP could have resulted in a contract is of no use. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP. We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircraft in place of 126.

The judges said the country cannot afford to be unprepared or underprepared in a situation “where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircraft, of which, we have none”. Pointing out that the process for buying the 36 Rafale fighter jets were concluded on 23 September 2016, the judgement said nothing was called into question then. The petitioners had tried to take advantage of a statement by former French president Francois Hollande and have questioned the entire decision-making process, the judges said, dismissing the petitions.

When this is the case, why is the Congress and its leaders trying to mislead people? Despite the court’s clean chit to the deal, Rahul Gandhi continues to call the Prime Minister names. And he makes no bones of their agenda: a joint parliamentary committee probe (JPC).

We all know what a JPC will lead to. We have seen in the case of the JPC on Bofors. And let’s not forget that there were dissenting reports to the JPC report, too. Even if the JPC were to give a clean chit to Modi, Congress members on the panel would be sure to come up with a dissenting note.

In that case, the Congress, Gandhi, and other leaders will go across the country, saying the JPC was fixed. It is a pre-planned attack and a move with the ulterior motive of discrediting the government and finding holes when there are none.

Gandhi should know that there is a limit to stretch one’s imagination and people’s patience. Now that the Supreme Court finds no foul play in the deal, he and his party would be better off accepting it.

Encouraging some elements to go to the Supreme Court, on the one hand, and demanding JPC, on the other, are tactics of wanting to have the best of all worlds. What Congress and its leaders are doing is something that is affecting bilateral relations, defence preparedness, and instilling a fear where no defence deals can be carried through, as it happened with the initial negotiations to buy 126 Rafale jets.

And it’s time for the BJP and Modi government to call the bluff of the Congress party and its leader.


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