Latest chapter in the Rafale case: Stolen documents serve good as evidence

In a setback for the Narendra Modi government on the eve of the first phase of 2019 Lok Sabha polls, the Supreme Court on Wednesday, April 10, dismissed the Centre’s objections and claim of privilege on the newly published Rafale papers. By doing so, it has greenlighted the examination of these leaked documents on the Rs 59,000 crore, fighter jet deal.

The Centre argued that the secret and classified documents cannot be admissible as evidence in accordance with Section 123 of the Indian Evidence Act. In an earlier hearing, it had cited the Official Secrets Act and threatened to charge The Hindu, which carried excerpts of some of these documents, with contempt of court.

The top court on Wednesday also agreed to hear a batch of review pleas challenging an earlier judgment dismissing a Central Bureau of Investigation inquiry and giving the government a clean chit into the defence deal with France, which the opposition alleges was corrupt. The court had, in December, dismissed these petitions, observing that it was satisfied with the level of compliance during process of procuring the jets.

In a fresh judgement, a bench headed by CJI Ranjan Gogoi has now decided that the apex court will go ahead with the hearing of the review petitions in the light of the new documents cited by petitioners—Yashwant Sinha, Arun Shourie, and Prashant Bhushan—alleging “criminal misconduct” in the Rafale deal. “We deem it proper to dismiss the Union’s plea” to obstruct evidence, Gogoi said, adding that the bench will post a date for the commencement of detailed hearing on the review petitions.

“We are delighted at the unanimous verdict dismissing Centre’s argument on admissibility of documents,” Shourie said on the order.

What are the secret papers the govt didn’t want SC to see?

A series of investigative articles published by The Hindu on the Rafale case formed the basis of the documents which would now be looked into by the Supreme Court. This is the gist of what they carried.

On pricing of the Rafale jets

One document procured by the publication (which had once uncovered the Bofors scam) showed that Prime Minister Narendra Modi’s decision to buy 36 Rafale fighter jets from France, instead of the 126 asked by the Indian Air Force, for seven squadrons, pushed the price of each fully-fitted, combat-ready aircraft up by 41.42%. 

It was the NDA government’s acceptance of the “design and development” of 13 India Specific Enhancements (ISE) which hiked the price of each jet by almost Rs 1000 crore—coupled with the distribution of this ‘non-recurring cost’ over 36 instead of 126 bare-bones aircraft.

The Hindu also reported that Dassault Aviation (French contractor who won the bid in 2007) claimed €1.4 billion for the additional capabilities in the form of hardware and software specified by the Indian Air Force. Although this amount was negotiated down to €1.3 billion, the price of each aircraft had risen from €11.11 million in 2007 to €36.11 million when the deal was struck in 2016.

Another document revealed internal differences over the final contours of the deal; according to The Hindu, three senior Defence Ministry officials on the seven-member Indian Negotiating Team (INT) objected to such an exorbitant quotation for the ISE.

On the IGA

The Supreme Court will examine crucial documents which show that various aspects of the BJP government-backed proposal were referred back to the Defence Acquisition Council (DAC) on five separate occasions between August, 2015 and July, 2016.

After this point, however, there is no reference of any further role of the DAC in the government notes, despite being empowered to take a decision under the Defence Procurement Procedure.

Then-defence minister Manohar Parrikar (who chaired the DAC) is believed to have “passed the buck” to the Cabinet Committee on Security (CSS) headed by Modi, possibly on the recommendations of the INT chairman.

All this and other documents suggest that the Rafale deal involved major and unprecedented concessions from the Indian government, which was made possible by dropping critical provisions for anti-corruption penalties. The traditional mode of transactions through an escrow account was scrapped days before the signing of the restricted inter-governmental agreement (IGA), that enabled the government to short-circuit the acquisition process without a fresh tender.

The newspaper further reported that in a meeting of the DAC in September 2016, Parrikar and other members “ratified and approved” eight changes in the IGA, supply protocols, offset contracts, and offset schedules.

On parallel parleys

On February 8, an internal note dated November 24, 2015, (a time when negotiations were in full swing) said that the Ministry of Defence (MoD) strongly objected to “parallel negotiations” conducted by the Prime Minister’s Office (PMO) with the French side.

The note cited as “a glaring example” how the parallel parleys had undercut “the position taken by the MoD and conveyed to the INT that the commercial offer should be preferably backed by Sovereign/Government Guarantee or otherwise by Bank Guarantees.”

The government’s submissions to the Supreme Court last year, however, had no mention of the PMO’s role in these negotiations, which consequently opened a new can of worms and shook the foundation on which the apex court had given the centre a clean chit last December.

Notably enough, another document suggests that then-defence secretary, G. Mohan Kumar, had himself endorsed this internal note in his own hand on November 24, 2015: “RM may pl. see. It is desirable that such discussions be avoided by the PMO as it undermines our negotiating position seriously.”
He now insists “there were no parallel negotiations” and that the Rafale deal was negotiated in the “most transparent way.”

On the final stages of the deal

Documents show that three senior Defence Ministry officials (who were the domain experts on INT) concluded that the final Rafale deal for 36 flyaway aircraft was not on “better terms” than the offer made by Dassault Aviation during the procurement process for 126 aircraft under the UPA government.

They also objected to the delivery schedule, arguing that the expected arrival of the first 18 of the 36 jets was slower than the one offered for the 18 aircraft in the original procurement process. According to the original Rs. 42,000 crore deal, 18 aircraft would be procured in a “fly-away (fully built) condition” and the remaining 108 fighters would be built by HAL. 

In its final report, the INT submitted to the Defence Ministry in July, 2016, that the estimated cost of loading bank guarantees (which the French commercial suppliers with backing from the French government refused) as €574 million.

This made the €7.87 billion inter-governmental agreement, signed on September 23, 2016 by the NDA government for the aircraft and weapons packages for the 36 fly-away Rafale fighter jets, more expensive by €246.11 million than the estimated aligned cost of the Rafale aircraft deal initiated by the UPA.

On waivers

The CSS gave exceptional and unprecedented waivers to Dassault Aviation and MBDA in the offset contracts they signed with the Indian government in September 2016, as part of the €7.87 billion Rafale deal. These waivers, were granted by the highest level of political decision-making in August 2016, exempting the two private French companies from having to comply with provisions of the Standard Contract Document of the Defence Procurement Procedure, DPP-2013.

Also read: A-Z on the Rafale deal -What we know so far

The backstory

The government in its argument had insisted in March that the documents on which the case rests were “stolen” and could not be used in a court of law. 

The “documents were stolen or purloined by former or current officers in the ministry of defence,” attorney general KK Venugopal had said. “These are privileged documents under the Official Secrets Act (OSA)… These were stolen to be published. An investigation is underway. Criminal action will be taken against those who published it.”

On the basis of this, he sought the dismissal of the review petitions and raised objections to petitioner Prashant Bhushan’s arguments, which were based on the articles published in The Hindu.

Also read: Everything you need to know about the Rafale deal and the case of the ‘stolen documents’

The Hindu report last month moved Congress chief Rahul Gandhi, one of the most vocal critics of the government’s alleged “criminal misconduct”, to ask,“If Supreme Court had this paperwork, do you think that the Supreme Court would have given the judgment that they give? This was withheld from the Supreme Court, of course. So that entire judgment is also in question.”

Can stolen documents be relied upon as admissible evidence?

Former Additional Solicitor General and senior advocate Indira Jaising agreed with the oral observation made by Chief Justice of India (CJI) Ranjan Gogoi that even stolen evidence could be looked into, depending upon its relevance.

During the hearing, the CJI had observed, “We can understand you saying that petitioners came with unclean hands. That they got the documents through doubtful sources. But it is another thing to say that the court cannot consider these documents at all. That they are untouchable”.

That said, The Hindu is almost certainly in the clear with reference to the charges of violating the Official Secrets Act.

Senior advocate and constitutional expert Dushyant Dave explains that the publication of the documents related to the Rafale deal do not amount to a violation, as ministers including the PM and several officers of the Air Force had repeatedly gone to the press with selective documents to justify their stand.

Opposition welcomes the decision

Calling it a victory for India, Opposition parties hailed the apex court’s decision to waive the privilege and review the pleas based on these papers.

This is a victory for India! We welcome the Supreme Court’s judgement to review the Rafale petition. Satyamev Jayate! 🇮🇳#RafaleDeal #ChowkidarChorHai— Congress (@INCIndia) April 10, 2019

“Modiji, you can run and lie as much as you want,” Congress leader Randeep Singh Surjewala tweeted in reference to the prime minister. “But sooner or later the truth comes out. The skeletons in the Rafale scam are tumbling out one by one. And there is now no Official Secrets Act to hide behind.”

Bahujan Samaj party supremo, Mayawati, demanded that PM Narendra Modi apologise to the country and that defence minister Nirmala Sitharaman resign.

Communist Party of India (Marxist) leader Sitaram Yechury claimed that the BJP has compromised national security.

Modi and his govt have compromised national security for corruption & cronyism in an important defence deal. They tried to evade accountability, denied a JPC, hid price from CAG, tried to first mislead, then stall any hearing in Supreme Court. Important that culprits are booked.— Sitaram Yechury (@SitaramYechury) April 10, 2019

Why it matters right now

When the petitioners first exposed the discrepancies in the various iterations of the deal last August, they had billed it as a scam larger than UPA-era Bofors. For a while, it was all anyone talked about, although the Supreme Court’s snap judgement undercut its transformation into a major poll issue.

Due to The Hindu’s reportage, the controversy entered a new chapter, one that could lead to a full-fledged inquiry, possibly headed by a Joint Parliamentary Committee (JPC). It is a possibility that the Centre has been keen to avoid—admitting small failures, like the case of stolen classified documents—to cover up a potentially devastating lie and escape further scrutiny.

However, BJP General Secretary Ram Madhav seems unperturbed. With the air of one who is confident of victory, he told News18, “It is not a setback, the government will be transparent and will come out clean.” Meanwhile, Attorney General KK Venugopal invoked the issue of national security once again, citing that the Rafale jets were urgently needed to defend the country against Pakistan’s F-16s.

Officials sources had once cited this urgency to justify the reduction of jets to 36, so they could reach India by 2017 because the Air Force needed the planes urgently. They are still nowhere in sight and according to latest reports, will not be available to India till mid-2022.

Prarthana Mitra is a Staff Writer at Qrius

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