A TROVE OF FILE NOTES, accessed by The Caravan, detailing communication between the defence ministry and the law ministry, reveals new specifics of how the government ignored serious and repeated objections by its own officials during the review and finalisation of the Rafale deal, at great cost to Indian interests. The notes show that the National Security Advisor, Ajit Doval, was a key member of the Indian negotiating team in discussions with French representatives where many of these objections were effectively dismissed—even as the NSA had no legal sanction to be part of such a negotiating team. The government concealed Doval’s involvement from the Supreme Court when it listed the members of the negotiating team in an affidavit submitted to the court on 10 October 2018. The National Security Advisor is not among the negotiators identified.

The Cabinet Committee on Security—the ultimate authority on defence acquisition, headed by Prime Minister Narendra Modi—approved the Rafale deal in its final form on 24 August 2016. India and France formalised the deal under what was termed an “inter-governmental agreement,” signed on 23 September 2016. Yet, as the notes state, the agreement omits basic terms expected of a government-to-government procurement deal—specifically, provisions to hold the foreign government liable for any breach of the agreement, and to resolve any disputes at the government-to-government level. The notes show that the Indian government went ahead with the Rafale deal, which requires it to pay a reported €7.87 billion for 36 fighter jets, without any financial security or legally enforceable guarantee for delivery from either the French government or the jets’ manufacturer, Dassault Aviation.

MODI FIRST ANNOUNCED that India would purchase 36 Rafale jets from Dassault while on an official visit to Paris, in April 2015. The following month, the Defence Acquisition Council, headed by the defence minister—Manohar Parrikar at the time—agreed to let purchase proceedings go forward.

Indian and French negotiating teams agreed on an initial draft of the deal. The draft was put before the Defence Acquisition Council, and was discussed between 28 August and 1 September 2015.

The main negotiated document was a draft inter-governmental agreement, which stated that the French government undertakes to supply India with 36 Rafales and attendant systems and services. But Article 4 of the draft agreement also stated that the French government was to transfer its obligations onto Dassault under a separate agreement termed a “convention.” The convention would perform the same manouevre with MBDA, the missile supplier in the Rafale deal. The French government would enter into the convention with the supplier companies, without making India a party to it.