Rafale: Review petition claims Supreme Court’s order refusing inquiry contains serious errors

Former central ministers Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan on Wednesday moved a petition seeking a review of the Supreme Court’s judgement in the Rafale deal case, arguing the court did not properly consider the prayers in their original petition.

In December, the apex court dismissed a batch of petitions calling for a review of the Rafale deal, particularly the offset arrangement between Dassault, the French maker of the aircraft, and Anil Ambani’s Reliance Aerostructure. One of the pleas was jointly filed by Sinha, Shourie and Bhushan. Claiming that there was prima facie evidence of wrongdoing, their petition sought directions to the Central Bureau of Investigation to register a first information report.

In their review petition, they claim there are errors in the December judgement which necessitate its reconsideration. The key points raised in the plea include:

CBI investigation

The review petition argues that while the court dismissed the original pleas as “inadequate and deficient”, it merely recorded the petitioners’ prayer for a CBI investigation without adjudicating upon it on the basis of the material placed on record. As such, the petition adds, the court erred by prematurely reviewing the Rafale contract itself without an investigation by statutory authorities or even a commission.

The CBI was not even given an opportunity to apprise the court about the status of a complaint that Sinha, Shourie and Bhushan had filed regarding the Rafale deal. “The petitioners’ prayer was not for an inquiry by the Hon’ble Court,” the plea states. “It was for an investigation by the CBI based on the material on record that prima facie showed the commission of a cognizable offence requiring investigation.”

CAG report

The review petition accuses the central government of misleading the court about the existence of a report from the Comptroller and Auditor General of India on the Rafale deal. Pointing to the court’s observation that the CAG report was sent to the Public Accounts Committee and a redacted version placed before Parliament, the petition notes that no such report exists. On the government’s clarification that the judges misinterpreted its submissions which merely explained the procedure of how a CAG report is dealt with, the plea contends that it is not possible three judges would have made the same error of misreading the submissions, provided in a sealed cover. The petition adds:

“Hon’ble Court’s reliance on CAG report is not ‘a clerical or arithmetical mistake or an error arising from an accidental slip or omission’. The Hon’ble Court has applied its mind and erred in relying on a non-existent fact to render its judgement which is not an ‘accidental slip’ but rather a substantial error. This error apparent can only be corrected under Order XLVII dealing with Review or it is open for the Hon’ble Court to recall its judgement, however application under Rule 3, Order XII is not maintainable.”

Further, the petition points out that it is for the Public Accounts Committee to decide how the CAG report should be placed before Parliament. “Therefore, the government has no authority to claim as a matter of fact that the CAG’s final report would be redacted.”

IAF testimony

The petition says while the Indian Air Force officials questioned by the Supreme Court talked about the nature of the Rafale jet, the force’s requirements and the current availability of combat aircraft, they did not make any statements on the pricing of the Rafale fighter under the contentious deal.

“It is most humbly submitted that no question was asked to or answered by the Air Force Officers as regards the decisionmaking process or pricing as regards 36 Rafale aircraft in the open court,” the petition points out.

Request for proposal

The review plea claims the court was also misled about the details of the Request for Proposal for the Rafale aircraft. The government claimed the process of withdrawing the earlier Request for Proposal for 126 aircraft began in March 2015 but the records dispute this submission. The petition notes:

“It is apparent that the said statement questions the claim that process for withdrawal of RFP as regards 126 aircraft had been initiated in March of 2015 or that the negotiations had practically come to an end. Said statement was on record.
The government has also admitted that on 10th of April, 2015, when the announcement was made to procure 36 aircraft instead of 126 and Make in India by HAL [Hindustan Aeronautics Limited] under Transfer of Technology was jettisoned there was no Acceptance of Necessity authorising the Prime Minister’s delegation to commit to such terms.”

Moreover, the petitions claims, the government did not place any material on record to show the Air Force had asked for reducing the number of Rafale aircraft from 126 to 36.

Offset agreement

In its judgement, the apex court did not consider that Reliance Aerostructure was ineligible for the offset contract, the petitions argues. The offset guidelines clearly state that such contracts go to Indian companies “engaged in the manufacture of eligible products and/or provision of eligible services”. Ambani’s company did not meet this condition as evident from its annual statements, the plea adds. Moreover, the defence minister had not cleared Reliance as the offset partner before it signed the offset agreement with Dassault even though the relevant guidelines require the minister’s approval.

Additionally, the petition claims, Reliance violated the terms of its manufacturing licence, granted in June 2016. It was specifically for “Manufacture and Upgrade of Airplanes and Helicopters Specially Designed for Military Application”. Instead, the company entered into a joint venture with Dassault to make components for civilian aircraft under the same licence.

Other crucial points raised in the review petition include then defence minister, Manohar Parrikar, not knowing about the new deal for 36 aircraft before it was announced in March 2015; previous governments not seeking the privilege of keeping the pricing details secret; news reports of Reliance paying for a film by former French President Francois Hollande’s partner.

The petition also collates new information that has emerged since the judgement, including claims that the government went ahead with the Rafale deal despite the objections of the Indian negotiating team. The team’s objections were not placed before the court.