Supreme Court of India to Open an Investigation Into the Rafale Jet Deal
The Supreme Court (SC) of India delivered a unanimous verdict to dismiss the Prime Minister Narendra Modi-led government's preliminary objection to the admissibility of three documents as evidence of the “controversial” Rafale Jet Deal review pleas on Wednesday, April 10. The Rafale deal is an Intergovernmental Agreement (IGA) signed between the Government of France and the Government of India in 2015 regarding the procurement of 36 Rafale fighter jets to India.
The April 14 verdict comes a month after the Union government raised objections on the admissibility of three leaked documents, addressing the IGA on Rafale, to the apex court by former Union ministers Yashwant Sinha and Arun Shourie, as well as activist lawyer Prashant Bhushan.
The government claimed that the documents annexed were unauthorized photocopies of the Ministry of Defense’s reports that were leaked into the public domain. Therefore, the government argued, the documents are protected by the Official Secrets Act of 1923 (India’s anti-espionage act) and could not be used as the basis to file the review plea.
Previously, on Dec. 14 last year, the Supreme Court had dismissed all petitions regarding a probe into the possible discrepancies of the Rafale Jet Deal and exonerated the Modi government. Sinha, Shourie, and Bhushan filed a review petition in the Supreme Court on its December 14 judgment.
Countering the government's argument, Justice KM Joseph, member of the three-judge bench, stated that Section 8(2) of the Right to Information Act of 2005 overrides the Official Secrets Act by compelling the government to disclose information “if the public interest in disclosure outweighs the harm to protected interests.”
Furthermore, the jury noted that since the documents had already been released into the public domain by an Indian newspaper, The Hindu, the argument of not examining them because they are “privileged” documents did not sustain. Lastly, the court pointed out that the test of admissibility lies in the relevance of the case’s evidence rather than the means through which it was obtained.
The leaked documents in question are a part of an eight-page report by the Indian Ministry of Defense’s negotiating team, which represented the Indian side during the Rafale agreement. The documents claim that the terms of the 2015 deal of 36 fighter jets were no “better” than the previous deal for 128 jets. Moreover, they stated that the delivery schedule for the 36 jets is more delayed than the one offered by the previous deal.
The negotiations for procurement of Rafale fighter planes first began in 2007, when the Indian government under the Congress Party-led United Progressive Alliance (or UPA, the current Opposition) awarded the offer for 126 fighter jets to the French company, Dassault Aviation. Under the deal’s terms, 18 of the jets were to be built in France and the remaining 108 were to be constructed in India. While some terms of the deal were finalized, the pricing negotiations were underway when the UPA government was replaced by PM Modi-led National Democratic Alliance after 2014 General Elections.
In 2015, Modi’s government nullified the agreement and announced that India would be importing 36 fighter jets from Dassault Aviation for a better-priced government-to-government deal between France and India. To meet India’s defense offset policy, requiring foreign manufacturers to spend a set percentage of the equipment contract amount in Indian companies, Indian business tycoon Anil Ambani’s debt-ridden Reliance Group was allegedly chosen by Dassault.
Controversy over the Rafale deal sparked on two accounts. Firstly, the Ministry of Defense’s negotiating team revealed that “the Prime Minister’s Office [had] been carrying on a separate negotiation process with the French government.” Weakening the negotiating position of the team, the move undermined its ability to secure better prices. However, the government insists that the deal is better-priced than the one struck by the previous government however the total amount spent per aircraft appears to be “far” more.
Secondly, Dassault and the Indian government claim that the company chose Reliance Defense Limited (a part of Anil Ambani’s Reliance group) as the off-set partner. However, in 2015 former French President Francois Hollande told French news agency, Mediapart, that the Indian government proposed Ambani’s company to serve as Dassault’s offset partner. The Opposition has accused Modi’s government of favoritism for choosing the heavily indebted and inexperienced Reliance group over the experienced public sector firm, Hindustan Aeronautics Limited.
Compounding the second controversy over the deal, the French publication Le Monde recently reported that the Government of France waived $163 million in taxes for a French firm owned by Anil Ambani, Reliance Flag, in 2015 during the Rafale Deal’s negotiation. However, the Ministry of Defense states that “Any connections drawn between the tax issue and the Rafale matter is totally inaccurate, tendentious and is a mischievous attempt to disinform.”
The April 14 verdict is seen as a setback to PM Modi’s Bharatiya Janata Party which has mobilized its campaign effort around the issue of national security to garner electoral support in the ongoing general elections.
Some experts have compared the Supreme Court verdict to the Pentagon Papers case in the United States, wherein the US Supreme Court upheld the right of public and media to access classified documents if they were found to be of public interest. They have extolled the verdict for giving “ordinary citizens an effective right to take action against people in power.”