The Centre has told the Supreme Court that there was no question of either registration of an FIR or investigation by the CBI in the Rafale fighter jets deal as the apex court had already concluded that there was no reason for intervention by it on the “sensitive issue”.
The Centre, which sought the dismissal of petitions seeking review of the December 14 verdict which gave a clean chit to the government on the procurement of 36 fighter jets from French firm Dassault, said CAG report “belied” the main arguments of petitioners regarding alleged “exorbitant price” of the jets.
In its 39-page written submissions filed in the top court, the Centre has said that petitioners and former Union ministers Yashwant Sinha and Arun Shourie and activist advocate Prashant Bhushan have not made out any ground which would justify a review of the “well-reasoned” December 14 judgment last year.
“Especially, once this court had come to the conclusion that on all the three aspects, i.e., the decision-making, pricing and Indian offset partner, there is no reason for intervention by this court on the sensitive issue of purchase of 36 Rafale fighter aircraft by the government, there is no question of either registration of FIR much less any investigation by the CBI,” the government said.
A three-judge bench headed by Chief Justice Ranjan Gogoi had on May 10 reserved its verdict on the pleas seeking review of the December 14 judgment in the Rafale case.
The apex court, in its December 14 verdict, had said there was no occasion to doubt the decision-making in the procurement of 36 Rafale jets and dismissed the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal.
Besides Sinha, Shourie and Bhushan, review petitions have also been filed by AAP lawmaker Sanjay Singh and lawyer Vineet Dhandha.
In its written submissions, the Centre has said in the garb of seeking review of the verdict and placing reliance on “some press reports and some incomplete internal file noting(s), copies of which were obtained unauthorisedly and illegally”, the petitioners cannot seek to reopen the matter since the scope of review petition is extremely limited.
“The review petition, it is therefore submitted, is an attempt to get a fishing and roving enquiry ordered, which this court has specifically declined to go into based on perceptions of individuals,” it said.
The Centre also said the petitioners have not disclosed any new evidence in the review petition “except that they have now based their case on some unauthorisedly accessed documents copied from the secret files of the Ministry of Defence.”
It said files and documents were made available to the comptroller and auditor general (CAG) who took about two years to complete its study and finalise its report.
“The report of the CAG does not support the main argument of petitioners which has been perpetually repeated before this court that the cost of each aircraft under 36 Rafale contract is Rs 1,000 crore higher than what it would have been under the MMRCA bid,” the Centre said.
“The basic price of the aircraft has been informed to the Parliament as approximately Rs 670 crore at prevailing exchange rate of November 2016; without associated equipment, weapons, India-specific enhancements, maintenance support and services,” the Centre said.
It also said for the overall aircraft package, “the CAG has held that the contract was concluded at a price which is 2.86 per cent lower than the audit aligned price.”
The government reiterated that it has no role in the selection of Indian offset partner which is a commercial decision of original equipment manufacturer (OEM).
It said monitoring of progress in the government-to-government process by Prime Minister’s Office (PMO) cannot be construed as interference or parallel negotiations.
Regarding the petitioners' claim that government had suppressed and concealed material facts from the apex court, the Centre said these allegations are devoid of merit.
“It is submitted that the IGA for 36 Rafale procurement is between the two sovereign nations and the implementation of the project which is on schedule is being closely monitored by both the governments. The adequate safeguards are built into IGA for ensuring smooth implementation of the project,” it said.
“The training of Indian Air Force personnel is underway in France. Any attempt to bring this procurement under cloud may result into delay in implementation of the project and would affect the operational preparedness of the Indian Air Force,” the Centre added.
Sinha, Shourie and Bhushan had earlier alleged in the apex court that the Centre “wilfully and deliberately” misled the court in the Rafale fighter jet case and this amounted to “wholesale fraud”.
On the scope of judicial review, they had said apex court has consistently held that where the allegation is of corruption, procedural violations and mala fide decision-making, the court will be well within its right to exercise the jurisdiction.