india

Updated: Mar 14, 2019 00:59 IST

The defence ministry on Wednesday sought the dismissal of a petition seeking a review of the Supreme Court’s December judgment rejecting a court-monitored review of the Rs 59,000 crore Rafale jet fighter deal, arguing that the petitioners relied on documents that could jeopardise national security and impair India’s relations with other countries.

An affidavit filed by the ministry, a day before the top court starts hearing the review petition, said: “Documents attached by the petitioners are sensitive to National Security which relates to war capacity of combat aircraft. Since the Review Petition has been widely circulated and is available in public domain, the same is available to the enemy/our adversaries. This puts the National Security in jeopardy.”

Resisting the stand of the petitioners, who want the court to take cognisance of the documents produced by them, the affidavit filed by defence secretary Sanjay Mitra said: “Petitioners are guilty of leakage of sensitive information, which offends the terms of the agreements. Additionally, those who have conspired in this leakage are guilty of penal offences under the Indian Penal Code including theft by unauthorised photocopying and leakage of sensitive official documents affecting National Security.”

Attorney general KK Venugopal told the apex court on March 6 that the review petition filed by former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan was based on stolen papers acquired from “present or former employees” of the defence ministry and which violated the Official Secrets Act. The government’s top legal officer later said he meant the documents were photocopied.

A three-judge bench is hearing the petition against the top court’s own December verdict.

The bench, headed by Chief Justice of India Ranjan Gogoi and comprising justices Sanjay Kishan Kaul and KM Joseph, found that there was “no occasion to doubt” the decision-making process behind the 2016 purchase of 36 jet fighters from Dassault Aviation of France. The petition says that the information that came into the public domain after the court’s judgment proved that the government “misled” the court on various counts. In its affidavit, the government has also claimed privilege with respect to the documents under the Evidence Act, saying the court cannot take cognisance of the papers. The review petition based on them must be dismissed, it argued. “These documents present a selective and incomplete picture of internal secret deliberations on a matter relating to National Security and Defence. The selective and incomplete presentation of the facts and records by the petitioners are intended to mislead this Court into deriving wrong conclusions which is very damaging to National Security and public interest,” the affidavit said. The documents produced by the petitioners with their review petitions include three sets of secret notes, one of them an eight-page dissent note written by three domain experts in the Indian negotiating team that has already been published by The Hindu newspaper.

The December judgment, in which the court ruled that it was satisfied there was no reason to doubt the purchase process or the need for the Rafale fighter jets, was based on an unsigned note given to the court by the government in a sealed cover. The petitioners said this was in violation of the principle of natural justice. Prashant Bhushan declined to comment.

Congress spokesperson Pranav Jha said the SC should take the note of the fact that the government had lied on the matter in the past. “...Every time courts cannot be taken for a ride,” he said.

The National Democratic Alliance (NDA) government’s decision to enter the government-to-government deal with France to buy 36 Rafale warplanes made by Dassault Aviation was announced in April 2015, with an agreement signed a little over a year later. This replaced the previous UPA regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by state-owned Hindustan Aeronautics Ltd. The deal has become controversial with the Opposition, led by the Congress, claiming that the price at which India is buying Rafale aircraft now is Rs 1,670 crore for each, three times the Rs 526 crore, the initial bid by the company when the UPA was trying to buy the aircraft. It has also claimed the previous deal included a technology transfer agreement with HAL. The NDA has not disclosed details of the price, but the UPA deal, struck in 2012, was not a viable one, former defence minister Manohar Parrikar has previously said, implying that it would have never been closed and that, therefore, any comparison is moot. The deal has also become controversial on account of the fact that one of the offset deals signed by Dassault is with the Reliance Group of Anil Ambani. The Congress claims the earlier deal was scrapped and a new one signed just to provide Ambani this opportunity for an offset deal. Both the government and Reliance have repeatedly denied this.