Govt’s Reply To SC on Rafale Deal Has Glaring Loopholes: Bhushan

The government doesn’t clarify on what grounds it decides to purchase 36 and not 126 Rafale aircraft.

The BJP government filed its reply to the SC on Rafale deal, said procurement process was followed. 

(Photo: The Quint)

The BJP government, through its 16-page document, informed the Supreme Court that the “procurement process was completely followed” in the purchase of 36 Rafale fighter aircraft.

The Centre also placed before the SC in a sealed cover the details of the price of the aircraft.

On 31 October, the SC directed the Centre to submit details on the purchase of the aircraft after a petition was filed by Prashant Bhushan and former Union ministers Arun Shourie and Yashwant Sinha demanding a court-monitored investigation into the Rafale deal.

Now, dissatisfied with the government’s reply, the petitioners plan to file a rejoinder. Petitioner Prashant Bhushan said,

“We are filing a rejoinder in the Supreme Court on the government’s reply on the Rafale deal. The reply is full of loopholes.”

The Quint spoke to Bhushan, who pointed out three major loopholes in the government’s reply to the apex court.

1. PM Modi Announced Purchase of 36 Rafale Aircraft before Cabinet Committee on Security’s (CCS) Approval

On 10 April 2015, Indo-French joint statement was issued on by the PM Modi and France President Hollande, which stated:

“Government of India conveyed to the Government of France that in view of the critical operational necessity for multi role Combat Aircraft for Indian Air Force (IAF), Government of India would like to acquire 36 Rafale jets in fly-away condition as quickly as possible...”

The government has claimed in the documents that procedure was followed in the purchase of the Rafale aircraft.

The procedure that should have been followed was – first, ‘negotiation’ between India and France on the pricing of the aircraft; second, ‘approval’ of the CCS; and third, the Indian government’s ‘announcement’ on the procurement of Rafale aircraft.

But in the case of the Rafale deal, PM Modi made the announcement first and then the negotiation kick-started between India and France, after which the CCS’ approval was obtained.

The Centre informed the SC that an Indian Negotiating Team (INT) was constituted to negotiate the terms and conditions of the procurement of 36 Rafale aircraft.

The negotiation started between the INT and French side in May 2015, a month after PM Modi announced that Rafale aircraft will be purchased.

“By making a joint statement with the French President on the purchase of Rafale aircraft, PM Modi’s statement was a fait accompli, the CCS’ approval was just a formality. It is certainly a major loophole in the process followed by the government.”

Prashant Bhushan, Senior Lawyer, Supreme Court

The INT had 48 internal meetings and 26 external meetings with the French side between May 2015 and April 2016. The INT submitted its final report on 4 August 2016 and recommended the case to be pushed for CCS’ approval and signing of the agreement with Dassault Aviation.

Finally, on 24 August 2016, the CCS gave its approval for signing of Inter-Governmental Agreement (IGA) for the purchase of 36 Rafale aircraft.

Screenshot of the document submitted by the government in the SC on Rafale deal

The IGA was signed by Defence Minister Nirmala Sitharaman and the French Defence Minister on 23 September 2016.

On what grounds did PM Modi decide to make the announcement of the purchase of Rafale aircraft without CCS’ approval, which came more than a year later?

2. Where Did the Number ‘36’ Come From?

In June 2001, the then Defence Minister approved the procurement of 126 fighter aircraft. The Services Qualitative Requirements (SQRs), which is an essential process to be followed to decide the number of aircraft to be procured, was prepared in June 2006.

The government finally decided to procure 126 Medium Multi Role Combat Aircraft (MMRCA) in June 2007. It was also decided by the then UPA government that 18 direct flyaway aircraft will be procured from the original manufacturer and the remaining 108 will be manufactured by HAL by transferring the technology to India.

Nowhere in the documents submitted to the SC does the BJP government clarify whose decision it was to purchase 36 aircraft.

Is it not important for the BJP government to explain why they reduced the number of Rafale aircraft purchased to 36 when the actual demand of the IAF was 126? Additionally, the document submitted by the BJP government also does not mention the details of the SQR approval on the purchase of 36 aircraft.

3. Lack of Understanding Between HAL & Dassault: Centre

In its reply to the SC, the government did not provide any reason for the decrease in the number of aircraft from 126 to 36. The BJP government, instead, points out that the reason for the non-transfer of the aircraft technology to India was that HAL and Dassault Aviation lacked common understanding. Due to this, the contract negotiations could not be concluded even after three years.

Here are the two reasons why HAL and Dassault Aviation couldn’t work together:

• Man-hours that would be required to produce the aircraft in India: HAL required 2.7 times higher man-hours compared to the French side for the manufacture of Rafale aircraft in India.
• Dassault Aviation as the seller was required to undertake necessary contractual obligations for 126 aircraft as per the requirements. Issues related to contractual obligations and responsibilities for the 108 aircraft manufactured in India could not be resolved.

In March 2015 the BJP government started preparing the new Request For Proposal (RFP) and it was completed in June 2015. This means that PM Modi made the joint statement with the French President on Rafale while the new RFP was still being prepared.

Clearly, these gaps in the document submitted by the government show that there’s more than meets the eye. Will the Modi government address these loopholes?