Rafale : Perjury Application Misconceived; Based On Selective Leaks And Incomplete Information, Govt Tells SC [Read Affidavit]

The perjury application filed by review petitioners in the Rafale case is based on selective media reports and incomplete internal file notings procured illegally, says the counter affidavit filed by the Government.

"Media reports cannot form the basis for seeking initiation of 'perjury proceedings' since it is well settled that Courts do not take decisions on the basis of media reports", states the affidavit affirmed by Apurva Chandra, Director General Acquisition of Ministry of Defence

The incomplete file notings contain views expressed by various functionaries at different stages of decision making process, which cannot be used to allege perjury. The petitioners are relying on "selective leaks" in media from Ministry of Defence, and opinions expressed by individual officers, which only present an incomplete picture about the deal. The application is wholly "misconceived" and is an attempt to reopen the issues already sealed by the Court by its December 14 judgment, contends the government.

The perjury application has been filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan, who were the petitioners in the PIL seeking probe into the alleged corruption and irregularities in the 2016 deal for procurement of 36 aircraft from the French company Dassault Aviation.

On 'parallel negotiations' by PMO 

According to the petitioners, the Government's submission that the entire negotiations were handled by the Indian Negotiating Team is discredited by the revelation made by The Hindu that Prime Minister's Office(PMO) held "parallel negotiations" with the French side, much to the objections of some of the officials of the Ministry of Defence. That the PMO intervened in the negotiations stands admitted by the statements of the then Defence Minister Mohan Parikkar, the petition states.

Responding to this, the affidavit states that PMO's monitoring of process cannot be construed as "parallel negotiations" or interference. The affidavit refers to the endorsement of the then Defence Minister Parikkar that the concern expressed by the Ministry officials appear to be "overreaction".

On dissent within Indian NegotiationTeam(INT)

The finding of the Court that negotiations by Indian Negotiating Team(INT) arrived at better terms relating to "price, delivery and maintenance", is based on erroneous and incomplete facts, say the applicants. Referring to the dissent of three officials of the INT, which was reported in "The Hindu", they submit that the interventions by the PMO led to the dilution of the several important clauses in the deal, like waiver of sovereign guarantee, non-insistence of payment in escrow account and incorporation of arbitration at Geneva as means of dispute resolution.

Rebutting this, the Government says : "The concerns raised by the members of INT were deliberated, recorded and addressed while ensuring utmost integrity and transparency in the process, allowing opinions to be freely expressed, recorded, discussed and if necessary modified. All the concerns raised were addressed in a collegiate manner".

Regarding the issue of Bank Guarantee, Arbitration seat etc, the applicants are trying to bring out contents of file noting of some functionaries selectively and are not bringing out the subsequent actions taken and how the concerns were addressed and decisions taken by the competent authority, states the affidavit. It mentions that waiver of sovereign guarantee is not an unusual practise in defence deals and cites the examples of contracts singed with Rosoboronexport of Russia, Foreign Military Sale of US.

The Government asserts that the Inter-Government Agreement(IGA) with French Government was vetted by the Ministry of Law and Justice and had the approval of Cabinet Committee on Security(CCS).

On benchmark prices

Also, the Court's finding that "broadly, the process was followed" does not stand against the information published by "The Hindu" and "The Caravan" regarding irregularities in the fixation of benchmark prices, argues the perjury application. "The note suppresses that Ministries/Officers were concerned that the way this agreement was structured, it did not meet the minimum requirements of an IGA and was IGA in nomenclature only", the petitioners submit.

Countering this the Government's affidavit refers to the report of the Comptroller and Auditor General which had brought out the unrealistic benchmark price fixed by INT and better price arrived at in the procurement of 36 Rafale jets, which was 2.86% lower than earlier process initiated during UPA regime for 126 Medium Multi Role Combat Aircraft(MMRCA).

The observations of CAG clearly negates the submissions put forward by the applicants.The petition for perjury filed on February 15 completely ignores the findings of CAG, states the Government.

On offset partner

According to the perjury petition, the Government's note made a reference to negotiations between Dassault Aviation and Mukesh Ambani-owned Reliance Industries in 2012, after the acceptance of bid under the 2007 Request For Proposal under the UPA era. It is alleged that the  note "mischievously" concealed the fact that Reliance Industries was owned by Mukesh Ambani, so as to confuse the Court. This confusion made the Court think that Reliance Industries was the parent company of Reliance Aerostructure Ltd(RAL), the Anil Ambani owned company which is at the centre of controversy. The petition speculates that this led the Court to ignore the fact that 2014-incorporated RAL landed the offset contract of Dassault, as the Court was under the mistaken impression that its parent company was anyways holding negotiations with Dassault since 2012.

Regarding this, the Government says that it has no role in selection of the Indian Offset Partner, which is a commercial decision of Dassault Aviation. The statement regarding negotiations between Dassault and Reliance Industries in 2012 was based on media reports, about which the the Government has no direct knowledge

On sealed cover note and correction application

The perjury petition states that the government had submitted an unsigned note in sealed cover in the Supreme Court, without the support of any affidavit, with 'misleading information'.

Refuting this, the Government states that the documents provided in sealed cover to the Court on November 12 were signed by the concerned Under Secretary and were based on official records. There was no direction to submit information by way of an affidavit.

Regarding the correction application, the Government states that it was filed to correct certain factual mistakes about the deal having been examined by the Parliamentary Accounts Committee and the CAG, and that such mistakes do not anyway affect the judgment, since the Court was concerned only with the decision making process and not pricing details of the deal.

Read Affidavit