india

Updated: May 04, 2019 21:57 IST

Review petitions asking the Supreme Court to reconsider its December 14 verdict rejecting a court-monitored probe of the Rafale deal are tantamount to questioning a sovereign decision related to national security and defence, the National Democratic Alliance (NDA) government argued in an affidavit filed in the top court on Saturday.

Terming the submissions made by the review petitions “scandalous, false, baseless and bereft of any particular material”, the affidavit said the ruling had no apparent “error warranting its review”. The affidavit said the Prime Minister’s Office (PMO) monitoring the progress of the deal for 36 Rafale jets could not be “construed as interference or parallel negotiations”.

On December 14, the Supreme Court dismissed all petitions seeking a court-monitored probe of the Rs 59,000 crore contract for Rafale fighter planes made by Dassault Aviation of France, saying that there was no reason to doubt the decision-making process. The petitioners had alleged fiscal malfeasance and commercial favouritism in the deal.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan have moved the Supreme Court for a review of the verdict, saying the ruling contained errors and relied on incorrect claims made by the government in an unsigned note given in a sealed cover to the court.

Two more review petitions have been filed by Aam Aadmi Party leader Sanjay Singh and lawyer Vineet Dhanda. An SC bench headed by Chief Justice of India (CJI) Ranjan Gogoi is expected to take up the matter on May 6.

The NDA government’s affidavit objected to the petitioners’ reliance on news reports and “incomplete” internal file notings to seek a re-opening of the case, which the government said cannot be done.

The scope of a review petition is “extremely limited”, it told the court.

The petitioners have relied upon the internal notings, which the government claimed were accessed illegally, to assert that parallel negotiations conducted by the PMO had weakened the position of the ministry of defence and the Indian negotiating team.

The apex court had on April 10 dealt a blow to the government when it dismissed objections over the admissibility of the leaked documents cited by petitioners seeking a review of the Rafale verdict.

The Centre pointed out in its affidavit that all papers and files related to the deal had been made available to the Comptroller and Auditor General which, in a report, said the price of the 36 Rafale ordered by the government was 2.86% lower than the “audit’s aligned price” in a bid received by the previous government in 2007.

On the allegation that the PMO had carried out parallel negotiations, the affidavit said: “It is further submitted that monitoring of the progress by PMO of this Government to Government process cannot be construed as interference or parallel negotiations.” It also put on record a file noting by the then defence minister admitting that the PMO and French President’s office were “monitoring the progress of the issues which was an outcome of the summit meeting”.

“The review petition... is an attempt to get a fishing and roving inquiry ordered, which this court has specifically declined to go into based on perception of individuals. A non-existent distinction is sought to be created between an inquiry by the CBI [Central Bureau of Investigation] and the court by playing on words,” the affidavit said.

The government said a statement by the petitioners that the judgment was “a fruit of poisonous tree” brought disrepute to the court and lowered its image and the majesty of the law. “Therefore, reliance by the applicants to the very same media reports in the present application is clear abuse of the legal process,” it said.

The Centre attacked SC’s April 10 order and said the order “would imply that any document marked secret obtained by whatever means and placed in public domain can be used without attracting any penal action”. It opened a window for any person making the request not only to seek papers from the defence ministry but also other ministries and departments, if they are stolen and placed in the public domain by the press or websites.

“This could lead to the revelation of all closely guarded State Secrets relating to space, nuclear installations, strategic defence capabilities, operational deployment of forces, intelligence resources in the country and outside, counter-terrorism and counter insurgency measures etc,” the affidavit said.

The NDA government’s decision to enter an $8.7 billion 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 United Progressive Alliance (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 was moot. Indeed, the UPA was not able to close the deal till 2014, largely over discussions related to pricing of items not included in the initial bid.

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.