Supreme Court seeks Rafale cost, offset partner details

New Delhi: Brushing aside strong objections by attorney general K.K. Venugopal, the Supreme Court on Wednesday asked the Centre to submit pricing details and the cost of 36 Rafale jets in the agreement signed with the French government in a sealed envelope in 10 days.

Further, in a major embarrassment, a three-judge Bench headed by Chief Justice Ranjan Gogoi, also asked the government to provide details which can be put in the public domain, i.e. shared with the petitioners who are seeking a CBI probe into the deal. The government, which will face the apex court again on November 12, has so far refused to disclose details of the pricing negotiation for Rafale jets despite the Congress and other other Opposition parties’ demand.  

The Bench, which also included Justices Uday Lalit and K.M. Joseph, also asked the government to share as far as possible, with the petitioners and the public, the selection process for the Indian offset partner (if any) in the defence deal. This would mean that the government now has to reveal details of the agreement entered into by Dassault Aviation of France with Anil Ambani’s Reliance group.

When the AG, Mr Venugopal, said that some of the information contained in the report that is to be handed to the court in a “sealed cover” is covered under the Official Secrets Act, the Bench said that details which might be considered “strategic and confidential” by the government might not be given to the advocates appearing for the petitioners.

When the AG pointed out to the court that the details of pricing have not even been shared in Parliament, the CJI shot back and said, “If pricing is something exclusive that you are not sharing, file an affidavit to that effect. State on affidavit that you cannot furnish those details.” The court also asked the government to put down in an affidavit details of the French defence deal that it can’t share even with the court and include other confidential details in a “sealed” cover.

 Acting on writ petitions filed by advocates M.L. Sharma, Vineet Danda, Arun Shourie and others, the court had, on October 10, asked the Centre to apprise it of the details and steps in the decision-making process leading to the award of the order for defence equipment in question, i.e. 36 Rafale jetfighters.

“We also make it clear that the steps in the decision-making process that we would like to be apprised of would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirement of the Indian Air Force,” the bench had said.

During the resumed hearing, the AG submitted “details of the steps in the decision-making process leading to the award of 36 Rafale Jet-Fighters/Fighter Aircrafts” in a sealed cover. After perusing the note, the bench allowed the contents of the note to be furnished to the counsel for the petitioners and the petitioners-in-person.

Apparently not satisfied with the information furnished in the sealed cover, the bench on Wednesday sought further details relating to pricing/cost as well the strategic advantage of the deal.

Counsel Prashant Bhushan submitted that a complaint has already been filed with the CBI for a probe and said, “Let the CBI inform the court as to what they have done about the complaint... It has been pending for four weeks.” The CJI told the counsel, “We have noted that your first prayer is for a CBI probe. Let the CBI put its house in order first… you will have to wait.”

In a brief order the bench said, “The suitability of the equipment (fighter jets) and its utility to the Indian Air Force has been questioned. What has been questioned is also the bona fides of the decision-making process and the price/cost of the equipment at which the same is to be procured. We have perused the same. At this stage we would not like to record any finding or views with regard to the contents of the said report.”

The petitioners said that in 2012, the deal for 126 Rafale fighter aircrafts was proposed, and out of the total of 126 number, 18 Rafale fighter jets were to be delivered by Dassault Aviation company in fly-away condition, while the rest 108 were to be manufactured in India at the Hindustan Aeronautics Limited (HAL) which is an Indian public sector aerospace and defence unit, under a transfer of technology agreement. The deal was nearly finalised by 2014 by the then UPA government.

In April 2015, Prime Minister Narendra Modi made a state visit to France and Paris made the announcement of purchasing 36 Rafale fighter jets in flyaway condition.  On April 13, 2015, the then defence minister made an announcement that the 2012 Rafale deal was effectively dead and that India had officially withdrawn the 126-aircraft MMECA tender on July 30, 2015, and that the deal announced for the procurement of 36 Rafale fighter aircraft was altogether a fresh procurement.

The petitioners have alleged that the price of the aircraft in the new deal has been increased from approximately Rs 700 crore per jet to over Rs 1,600 crore per aircraft without any legitimate public interest.