Government confirms ‘frank’ Rafale file notings
The Centre on Saturday told the Supreme Court that the Prime Minister’s Office “monitoring” the Rafale deal could not be construed as “interference or parallel negotiations” as alleged by critics, but did not deny the claim that the defence ministry had objected to the PMO’s role.
Seeking the dismissal of a batch of review petitions with “exemplary costs” on the ground that they were mostly based on purportedly unfounded media reports, the Centre also pleaded that the tax concessions given to Reliance Industries by the French government had no connection with the Rafale deal, as has been alleged.
The Supreme Court will take up on Monday review petitions filed by former Union ministers Yashwant Sinha and Arun Shourie, advocate Prashant Bhushan and several others seeking a review of the December 14, 2018, judgment in the wake of media reports citing file notings of the defence ministry reportedly objecting to the “PMO’s parallel negotiations” over the Rafale deal.
The court had said there was no illegality in the decision-making process related to the controversial purchase of 36 Rafale combat jets from France.
In a counter-affidavit submitted through senior advocate R. Balasubramanyam, the Centre told the Supreme Court on Saturday: “Monitoring of the progress by PMO of this Government to Government process cannot be construed as interference or parallel negotiations. The then Hon’ble Raksha Mantri (defence minister) had recorded on file that ‘it appears that PMO and French President’s office are monitoring the progress of the issues which was an outcome of the summit meeting’.
“The petitioners are also trying to interlink an unrelated issue and create controversies on the basis of certain media reports. The issue reported in the Media relates to the decision of a sovereign Government giving certain concessions to the subsidiary of an Indian private entity (Reliance) in a sector unrelated to Defence.
“It is far-fetched and a figment of imagination to link the decision of the French Government in this case to the procurement of 36 Rafale Aircraft. It is reiterated that the Government of India has no role in selection of Indian Offset partner which is a commercial decision of OEM (original equipment manufacturer).”
On the objections raised by the defence ministry to the PMO’s parallel negotiations, the government said “internal file notings from the Secret File of the Ministry of Defence wherein various views and legal advice rendered by different agencies at different stages of the procurement process have been reflected/recorded” were “incomplete”.
The government said the notings contained “views expressed by various functionaries at different times and not the final decision of the competent authority of the Union Government”.
“It is well settled by this Hon’ble Court that in governmental functioning files are generally examined/seen by various agencies and functionaries in the hierarchy.
“While doing so there is free and frank expression of views/candour of opinion expressed by the functionaries. These internal file notings and views contained therein are mere expression of opinion/views for consideration of the competent authority for taking final decision in the matter.
“It cannot form the basis for a litigant to question the final decision. Therefore, there is no ground made out either for entertaining the review petition on this ground either,” the affidavit said.
The Centre said the claim that Anil Ambani’s Reliance had been offered tax concessions as part of the Rafale deal was based on unsubstantiated media reports.
“The reference to a matter supposedly under consideration for investigation in France as mentioned by the applicant is apparently based on unsubstantiated media reports,” the affidavit said.
The Centre also said there was no truth in the allegations that Rajeev Verma, then joint secretary in the defence ministry, had proceeded on leave to protest the deal.
“The petitioners have made a totally false allegation that Shri Rajeev Verma, Joint Secretary & Acquisition Manager (Air) who was one of the three officers who had highlighted the issues of concern, had proceeded on leave because of this.
“In fact, Shri Rajeev Verma signed the Note for the Cabinet in the instant case. At the time of the signing of the Contract, Shri Rajeev Verma had proceeded on Official Training abroad of Department of Personnel & Training for which he had applied and the training was approved several months earlier,” the Centre said in its affidavit.
“It is submitted that in the garb of seeking review of the judgment, and placing reliance on some media reports and some incomplete internal file notings procured unauthorisedly and illegally, the petitioners cannot seek to re-open the whole matter by asking for production of documents in review petition since the scope of review petition itself is extremely limited.
“The Review Petition, as well as the present Interlocutory Application (for placing before court various documents) submitted is an attempt to get a fishing and roving enquiry…,” the affidavit added.
The Supreme Court had in April allowed leaked documents to be relied upon by the petitioners seeking review of the Rafale judgment and dismissed the government’s preliminary objections claiming “privilege” over them.
Classified documents were sourced by the media over the Rafale deal. Citing internal reports of the defence ministry, The Hindu newspaper had reported that the defence ministry had objected to parallel negotiations by the government.
The Centre said on Saturday that access to all files, notings and letters related to the procurement of the Rafale jets, including the full pricing details, had been made available to the Comptroller and Auditor General, who had submitted a report concluding that the price of the 36 planes was 2.86 per cent lower than the audit-aligned price, apart from additional benefits.
“The Government remains committed to provide to this Hon’ble Court any document or file which it desires to peruse.
“The submissions of the applicants are bereft of any particulars much less material particulars; they are scandalous and false and baseless to say the least,” the government said.
It said the CAG, after examining extensively the planned procurement of 126 Rafale jets, had stated in its audit report that the process had started in 2000 but had not made any progress in 15 years.
“The decisions by the Cabinet Committee on Security (CCS), the highest decision making body in the Government on defence matters and also by Defence Acquisition Council (DAC), the highest decision making body in Ministry of Defence, have been made keeping in view all the facts of the case and the critical operational necessity of Indian Air Force. The actions of the petitioners tantamount to questioning the sovereign decision concerning national security and defence,” the Centre stated.