Rafale : Petitioners Raise Doubts On Reliability Of CAG Report [Read Rejoinder]

Responding to the counter-affidavit filed by the Government terming the perjury application in Rafale case "misconceived", the applicants have filed a rejoinder.

The Government has placed heavy reliance on the report of the Comptroller and Auditor General to rebut the allegations levelled by the Yashwnat Sinha, Arun Shourie and Prashant Bhushan in the application.

Regarding this, the rejoinder casts doubts on the reliability of CAG report based on the following arguments :

• Much before the finalisation of CAG report, the Government had said in the sealed cover submitted to the Court that the report will redact the pricing details. The CAG report tabled in Parliament on February 15 had pricing details redacted, as "predicted" by the Government.
• CAG itself has admitted that there was no precedent of redacting pricing details from audit.
• CAG report is silent on the fact that the approval for the deal was given much after the announcement of it made by the Prime Minister during his France visit in April 10, 2015, whereas the Acceptance of Necessity for the deal was given later on May 13, 2015.
• CAG report is silent on "parallel negotiations" by Prime Minister's Office.
• CAG report is silent on dropping of standard clauses meant to ensure transparency and probity in every procurement deal.
• CAG does not address the issue of offset partner and proposes to do a separate audit for the same.
• CAG concedes that dropping of bank guarantee clause resulted in savings for Dassault. But this is not accounted in its final conclusion that deal was cheaper by 2.86% from the earlier deal for 126 MMCRA.

The petitioners contend that deal had several irregularities, such as the approval given after the announcement of the deal by PM, overruling of the objections by Ministry of Law and Justice regarding waiver of bank guarantee and selection of arbitration seat, overlooking of the dissent by domain experts in the Indian Negotiation Team. 

They also argue that a 'surreptitious amendment' was introduced in August 2015 in the procurement procedure to drop the condition that Indian Offset Partner should be disclosed in the Commercial Offset Proposal, which is to be approved by the Defence Ministry.

They assert that the Government had misled the Court by suppressing relevant and material information and that the December 14 judgment, which had declined to order probe into the corruption allegations in the deal, was obtained through "fraud played upon the Hon'ble Court by the government".

The rejoinder has annexed a document purported to be a note from the Ministry of Defence regarding "eight last minute changes" that were approved by the Defence Acquisition Council. Based on this document, the rejoinder states that Cabinet Committee on Security met in September 2016 to drop standard clauses in the deal pertaining to use of undue influence, agents/agency commission and access to books of accounts of industrial suppliers, which are usually included in procurement deals to ensure transparency and probity.

They allege that even now the Government is not disclosing to the Court these "last minute changes".

The "continued suppression of relevant and material information by the government is the reason for the petitioners to seek production of relevant and material documents", states the rejoinder.

Given that the impugned judgment has been obtained through multiple falsehoods and suppression of material and relevant information, it needs to be recalled, the petitioners contend.

The matter is listed for consideration tomorrow.

Read Rejoinder Affidavit