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Supreme Court asks government searching questions on Rafale

Prashant Bhushan highlights the waiver of the anti-corruption clause in Rafale deal
The Supreme Court

Our Special Correspondent   |   New Delhi   |   Published 11.05.19, 01:39 AM

The Supreme Court on Friday asked the Centre searching questions on the Rafale deal, including the possibility of the CBI registering an FIR, prompting attorney-general K.K. Venugopal to imply the deal may have to be cancelled in such a scenario.

“If your lordships are going to order a CBI probe, can we proceed with the deal?” he told the bench of Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph.

Former Union ministers Yashwant Sinha and Arun Shourie have with advocate Prashant Bhushan sought a CBI investigation into the aircraft deal and a review of the apex court’s December 14 verdict that had dismissed pleas for a court-monitored probe. Several others too have moved similar review petitions.

“What is your response to the submission on Lalita Kumari case?” Justice Joseph asked Venugopal towards the end of the hearing, which lasted more than two hours.

He was referring to a 2014 constitution bench ruling that makes it mandatory for the police or investigating agencies to register an FIR if there is prima facie material to suggest an offence.

“In this case there is no such prima facie finding,” the attorney-general said.

Justice Joseph asked about the petitioners’ allegations about a cost escalation in the deal from 5.2bn euros to 7.89bn euros. Venugopal said the deal’s pricing was governed by an inter-governmental agreement that could not be discussed in public.

“It’s a question of national security, and no other court in the world will examine a defence deal on these kinds of arguments,” he said.

Justice Gogoi asked: “What about the (absence of a) sovereign guarantee (which would have made the French government liable if Rafale defaulted on the contract)?”

Venugopal said even developed countries like Russia and the US sometimes “waived off bank guarantees”.

Justice Joseph mentioned Bhushan’s references to the pricing-related objections and dissent notes from three domain experts of the Indian Negotiating Team.

Venugopal said the experts’ concerns had been referred to the defence acquisition council. “Eventually, the three dissenting members agreed,” he said.

Justice Joseph asked: “Do you have any objections to making the said consent of the three members available to this court?”

“Should this court go into all these questions? There are any number of judicial orders which I can submit to say that courts do not have jurisdiction to deal with these types of issues…. But if your lordships still want (the consent document), I will submit it,” Venugopal said.

He insisted that the documents relating to the defence ministry’s objections to the “parallel negotiations” by the PMO and the experts’ queries on the increased pricing had been “stolen” and should therefore not be considered.

Shourie had earlier made a personal submission arguing the absence of a sovereign guarantee would enable France to use the international Arms Trade Treaty to “modify, deny or stop any supply of arms or its spares”.

He asked that when the government could share the documents with the CAG, why could it not with the Supreme Court?

Bhushan highlighted the waiver of the anti-corruption clause, which mandates cancellation of the deal and a heavy fine for any middleman involvement.

The court reserved its verdict on the review petitions, as well as on BJP lawmaker Meenakshi Lekhi’s contempt plea against Congress president Rahul Gandhi for allegedly claiming the top court had held Prime Minister Narendra Modi guilty in the Rafale deal.

Senior advocate Abhishek Manu Singhvi urged the court to drop the contempt proceedings since Rahul had tendered an “unconditional apology”.

But senior advocate Mukul Rohatgi argued that the proceedings cannot be dropped since Rahul had showed no genuine “remorse or contrition” for his remarks.


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