Rafale verdict: Government asks SC to correct error, says court misinterpreted wording

The government on Saturday filed an application for a correction to be carried out in the Supreme Court order on the Rafale jet fighter deal.

The court’s ruling on Friday effectively vindicated the government’s stance that due process had been followed in reaching the Rs 59,000 crore deal, and said there was no reason to order a probe by the Central Bureau of Investigation, as demanded by the petitioners.

The order, however, contained some errors, the most significant one being its mention that the pricing details had been shared with the Comptroller and Auditor general of India, or CAG, that the government auditor had submitted a report to the Public Accounts Committee, and that redacted portions of the report were available in the public domain.

This error was picked up by some of the petitioners as well as opposition parties that claimed the government had, in its original submission to the court, misled it. Congress president Rahul Gandhi said at a press conference on Friday: “How does the Supreme Court judgment have this line that Rafale pricing has been examined by the PAC. Now, we have to ask the government, where is this CAG report?”

On Saturday, the defence ministry filed an application for a correction of that very paragraph.

The original paragraph in the order (paragraph 25) said: “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as CAG), and the report of the CAG has been examined by the Public Accounts Committee… Only a redacted portion ...was placed before the Parliament and is in public domain.”

The defence ministry said in its petition that the court seems to have misunderstood its original submission, which was, it added, “in the form of bullet points”. According to the ministry, the “second bullet point” read: “The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain”.

The petition argues that the use of the word “is” was “a description of the procedure usually followed” and asked the court to replace “has been” in paragraph 25, which seems to suggest that the act has already taken place, with “is”.

Ideally, of course, the governments original submission should have used “will be” instead of is to make things clear.

It isn’t clear when the court will correct the order. If the three judges of the bench who issued the order are in town, this could happen immediately, a government functionary said on Saturday.

It also isn’t clear whether the government’s submission in court will satisfy the opposition.

Ahead of the move on Saturday, Congress Lok Sabha floor leader Mallikarjun Kharge said: “”They have given wrong information to the court and on the basis of that information, the court has given its verdict. Now, I will request all the PAC panel members to fix a meeting to summon the attorney general and the Comptroller and Auditor General. We want to ask them when did they submit the Rafale report to the House and when did it come to the PAC, when did they come to give evidence, and when did we present the PAC report to Parliament?”

Kharge added that the date for the meeting will be scheduled after talking to other members. He also repeated the party’s demand for a Joint Parliamentary Committee to probe the Rafale deal.

Senior Congress leader Kapil Sibal also demanded at a press conference that the Rafale deal must be probed by a JPC.

Sanjay Singh, a Rajya Sabha MP from the Aam Aadmi Party and one of the petitioners in the case, said: “In Friday’s judgment, there are three inconsistencies. The first about the CAG report and PAC looking into it. Second, about the reservation by the Air Chief on sharing of pricing details with SC and the incorporation of Reliance (Defence) and its talks with Dassault since 2012. The government has to come clean on the issue. And for this, I have written to the chairman of the Rajya Sabha asking to summon the attorney general for India KK Venugopal in Parliament and ask him to explain the issue to the house

Meanwhile, officials familiar with the matter at CAG said on condition of anonymity that the government auditor would finalise its report into the Rafale deal by the end of January.

“CAG after drawing its conclusions gives the auditee a final chance for rebuttal in an exit conference. The exit conference with regard to the Rafale deal is yet to happen. It takes around a month more to finalise the report after the exit conference,” said one of the officials.

The official added that the CAG is looking into around a dozen defence deals and that the Rafale deal is part of the overall report into these procurements.

The official added that the Public Accounts Committee chairman Mallikarjun Kharge on Friday had checked with the Deputy CAG Ashwini Attri whether the audit watchdog had submitted any report on the Rafale deal to the Parliament. Attri’s answer was that it had not, this official said.

The Congress has over the past year raised the heat on the Modi government’s decision to enter an $8.7 billion government-to-government deal to buy 36 Rafale warplanes made by Dassault, which was announced in April 2015. This deal, signed a year later, replaced the previous United Progressive Alliance regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by state-owned Hindustan Aeronautics Ltd.

The Congress claims the earlier deal was scrapped and a new, more expensive one signed to provide businessman Anil Ambani’s Reliance Group an opportunity for an offset deal. Both the government and Reliance Group have repeatedly denied this. Reliance Group, which is one of many companies to benefit from the offset deal, formed a joint venture with Dassault Aviation.