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‘Rafale is not being procured for ornamentation’, Attorney General argues in Rafale review petition, judgement reserved by SC

The AG said that petitioners are repeating the arguments made in the original writ petition, which is not allowed.

The Supreme Court of India heard the final arguments in the review petition asking for a probe in the Rafale deal today. Along with the review petition, the court also took the matter of contempt of court case against Rahul Gandhi for falsely saying that SC has also agreed chowkidar chor hai. After the conclusion of arguments, the bench of CJI Ranjan Gogoi, Justices Sanjay Kishan Kaul and KM Joseph reserved the judgement in both the cases.

Starting the arguments, lawyer Prashant Bhushan said that an FIR should be registered as per Lalithakumari judgement, and in the 14th December order dismissing the original petition, the court had erred by assuming the petition was for cancellation of the deal, while the plea was for a probe in the Rafale deal. He also alleged that the judgement was based on incorrect and incomplete facts presented by the government.

He said several clauses, like the standard anti-corruption clause, was dropped from the deal. When justice K M Joseph asked if standard clauses are mandatorily included in inter-governmental agreements, Bhushan said that the government has been silent on the issue.

Prashant Bhushan also highlighted that during the discussions, there were disagreements on some issues among the members of the Indian Negotiating Team. He said that the union government did not tell the court about these disagreements, and that itself is a ground for reviewing the judgement. But he did not state the final report of the team was unanimous, and the disagreements were resolved in subsequent meetings.

Prashant Bhushan also said that “Anil Ambani was involved in this deal right from the beginning. There was a quid pro quo. Ambani was helping a film to be made by a French Minister’s wife, he got a huge tax exemption at the same time. All this requires a probe”, repeating a lie that has been debunked long ago.

Another petitioner Arun Shourie also made presentations at the court, who alleged that the government has made false submissions in the case. He claimed that the government has misled the court and suppressed many relevant documents from the court.

AAP MP Sanjay Singh’s lawyer wanted to argue, but the court did not allow. The CJI said, “We told you earlier that we don’t want to hear you.”

Presenting the government side, attorney general KK Venugopal said that petitioners are repeating the arguments in the original petition which was dismissed, and it is not permissible. He then cited the CAG report to argue that India got the Rafale jet at a cheaper price. “Will this Court sit on the computation of the prices? And what happens thereafter? Will this Court then fix the prices of aircraft, avionics?” Venugopal questioned the court. He also said that in the case, the government was not required to submit all file notings, documents etc at the court. He said that the court has already approved the decision-making process in December, so there is no question of review.

So far as the price is concerned, it is covered Article 10 of the inter-government agreement. Pricing under Article 10 was not supposed to be discussed in public domain, the AG argued.

He said that the Rafale fighter jet is not an ornament, it is being purchased for national security. “No other court in the world will examine a defence deal on these kinds of arguments”, he argued. “You take out incomplete documents surreptitiously and argue as if this is a contract for building a road or a dam. But we are talking about a defence contract that relates to the national security”, the attorney general said referring to the cropped documents which were published by The Hindu, and used by the petitioners in the review petition.

CJI asked the AG about waiver of sovereign guarantee, and justice KM Joseph about the lack of transfer of technology in the Rafale deal. To this, the AG replied that the court cannot decide on the technical aspects of the deal. He said, “who decides which one is better? Can the court decide on technical aspect of transfer of technology? We have reasons to show why deal with HAL fail”. The AG also cited past precedence of waiver of certain clauses in defence deals with Russia and the US.

Answering about the applicability of Lalithakumari judgement, the AG asked back what is the offence. He said that there is no prima facie case, and the petitioners are asking for documents from the government to build a prima facie case.

Responding the question about dissent by three members of the committee, Venugopal informed that court that the same officers later ratified all clauses. They examined the whole aspect, and the concerns raised by the three members were referred to Defence Acquisition Committee. Eventually, the three dissenting members agreed. The decision was taken unanimously and was then placed before the CCS, he added.

When justice Joseph asked whether the government will have a problem in placing their assent on record and make it public, AG said that the government will have no problem. But he added that the court should not go into it, citing jurisdictional limitations. He said, “are we dealing with a contract to lay a bridge or construct a road? We are talking about a defence contract. They shouldn’t have lay their hands-on incomplete papers.”

After the conclusion of the arguments on the review petition, Rahul Gandhi’s contempt case was taken up by the court. Petitioner Meenakshi Lekhi’s lawyer Mukul Rohatgi said that Rahul Gandhi’s apology was belated and it is not enough. He said that Rahul Gandhi should offer his apology publicly.

Rahul Gandhi’s lawyer AM Singhvi said that Rahul Gandhi stands by the political slogan, but apologies for his wrong attribution of the same to the Supreme Court. He said that Rahul Gandhi had expressed regret even before a notice was issued by the court, and had later apologised when told that the regret was not enough.

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