SC ruling on Rafale big win for media, but not a loss for Modi either

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Updated: April 12, 2019 6:53:37 AM

Big SC win for media as govt can’t invoke OSA to hide secrets, but govt should use the chance to argue merits of its decisions.

RafaleThe Supreme Court Wednesday allowed leaked documents to be relied upon by petitioners seeking review of its Rafale judgement and dismissed the government’s preliminary objections claiming “privilege” over them.

It was never clear why Attorney General KK Venugopal argued that the documents on the Rafale deal published by The Hindu should not be relied upon by the Supreme Court since they were ‘stolen’ and were confidential government papers. After all, and this is the question the judges asked when he made the original submission, if the documents are genuine and make a compelling point, how does it matter if they are stolen or not? In the event, it is not surprising that the Supreme Court, in a bench led by Chief Justice Ranjan Gogoi, ruled in favour of the petitioners being allowed to use the documents to argue their case.

This is a big victory for journalists since it means that future governments can’t try and discredit their investigation – or worse, apply the Official Secrets Act on them with impunity – which is based on documents the government wants to keep secret. Indeed, it was always odd that the government took this view since, first, this gave the impression the government had something to hide; and, second, if this logic was to be used, many of the documents used to prove corruption in various UPA deals would also become inadmissible in court.

There are three documents in question that the government wanted to be kept away from the court, all from the ministry of defence. One document, for instance, is a November 2015 note by the then defence secretary who objected to the PMO also carrying out a negotiation with the French while a negotiating committee was doing the same thing; then defence minister Manohar Parrikar, however, had overruled the objection and said that this appeared to be an over-reaction as the PMO and the French President’s office monitoring the progress was part of the agreement of prime minister Modi and French president Macron. There is another note that discusses the French demand for waivers for sovereign guarantees, and the Indian government agreeing to it, among other issues; the lack of a French government guarantee, for instance, meant the deal wasn’t quite a government-to-government one as claimed by the Indian side.

There is also the dissent note of three members of the seven-member negotiation committee that raised most of these issues as well as others on whether the price was too high. One issue raised, for instance, pertains to why the EADS offer of a 20% discount – made after Rafale was awarded the tender for 126 jets based on its lower bid – shouldn’t be used to negotiate the price of the NDA’s 36-jet deal; the other four members of the negotiating committee argued this was an unsolicited offer and so was invalid. Similarly, the dissent note argued that the India-specific enhancements were too costly while the others on the committee didn’t hold the same view.

Now that the issue is going to be argued fully in the Supreme Court, presumably, the government will also make available the notes of the others in the negotiating committee who were, in fact, in the majority. More important, the reasons for overruling these objections need to be made public; the government, after all, is well within its rights to reject the advice of its officials if the reasons are valid.

While the crux of the argument seems to be about whether the UPA’s ‘deal’ for 126 aircraft was cheaper, the fact is that the UPA’s ‘deal’ was never completed because the French didn’t agree to guarantee the aircraft made under license by HAL and, indeed, the costs of the aircraft would have made Rafale a more expensive aircraft since HAL’s labour costs were much higher than those being charged by Rafale at its French facilities. As the CAG report on Rafale put it, “the above two issues led to a stalemate in negotiations…Five years after the bid, and after three years of evaluation and negotiations, there was no finalisation”.

Also, given what the Mallikarjun Kharge-headed Parliamentary Accounts Committee said about HAL’s delays – decades, in the case of the LCA – this would probably have delayed the Air Force getting the Rafale as well; indeed, as the CAG pointed out, it took 180 months to sign the initial contract in the UPA regime. A telling chart in the CAG report points to the fact that it took 96 months for the armed forces to sign a contract for a Doppler Weather Radar while it took the Met department just nine months to conclude.

Defence purchases are not just about the price, speed is also of the essence and has to be regarded as an essential component of any contract. If it is not, the takeaway for subsequent governments will be that it is better not to sign a deal for fear of being tripped up in the future; indeed, when AK Antony was the UPA’s defence minister, he was reluctant to push most acquisitions for this reason, and, it is still not clear what he meant when he said, recently, that he had intentionally delayed the Rafale deal in the national interest. The SC case is a great opportunity for the government to present its case in detail; trying to hide under the Official Secrets Act was always a bad idea, and gave the impression that the government had something to hide.

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