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CJI-Led Bench Of SC To Consider Petitions On Rafale Deal Tomorrow

Live Law News Network
30 Oct 2018 4:20 PM GMT
CJI-Led Bench Of SC To Consider Petitions On Rafale Deal Tomorrow
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The CJI-led bench of Supreme Court will consider tomorrow the petitions regarding Rafale deal.

As the first item in the bench, the Court will consider the petitions filed by M L Sharma and Vineet Dhanda.  On October 10, the bench had sought from the Attorney General the details of the steps involved in the decision leading to the new deal. The CJI led bench, however, clarified that the details so sought would not cover the pricing or the suitability of the equipment for the Indian Air Force, bearing in mind the sensitive nature of the matter.

Also listed tomorrow is the PIL filed by  former Union Ministers Yashwant Sinha and Arun Shourie, along with lawyer Prashant Bhushan,  for registration of FIR and Court-monitored investigation by CBI into corruption allegations in Rafale deal.

The PIL alleges that in the Rafale deal there is prima facie evidence of commission of cognizable offences under the Prevention of Corruption Act by public servants occupying the highest of public offices in the country. Though the petitioners had filed a complaint on October 4 before the CBI alleging foul play in Rafale deal, no action has been taken.

It is alleged that "non-registration of FIR is apparently on account of the fact that the complaint pertains to corruption in the procurement for 36 Rafale aircrafts by the highest public servants in the country and there is extreme pressure on the CBI due to which it is unable to discharge the duties cast on it in a fair and impartial manner".

According Sinha, Shourie and Bhushan, in 2007, after going through the requisite procurement procedures at various levels, tenders were issued by the Ministry of Defence for the purchase of 126 fighter aircrafts and it was specified in the Request for Proposal that 18 of these aircrafts would be purchased from abroad in a ‘fly-away’ condition and the remaining 108 would be manufactured in India in the factory of Hindustan Aeronautics Limited (HAL) with transfer of technology from the foreign vendor. After the financial bids, Dassault Company manufacturing the Rafale aircraft was declared the lowest tenderer and thereafter price negotiations began. These negotiations were at a very advanced stage (95% complete) by 25 march 2015, states the petition.

However, when the Prime Minister visited France in April 2015, a new deal was announced to purchase only 36 Rafale Aircrafts in a ‘fly-away’ condition without any transfer of technology and make in India. It later turned out that the new deal involved 50% of the value of the contract to be given as “offset contracts” to Indian companies and that the government informally told Dassault and the French government that the bulk of the offset contracts would have to be given RAL company of Mr. Anil Ambani which had just  been set up. It is also alleged that the price of the aircrafts in the new deal has been increased from approximately 700 crores per aircraft to over 1600 crores per aircraft  without any legitimate public interest.

This act of unilaterally changing the deal by bypassing all laid down procedures was to ensure that Mr. Ambani could be brought in as an offset partner for the purpose of obtaining for him offsets worth thousands of crores, alleges the petition. "Mr. Anil Ambani’s recently incorporated company had no credibility or even eligibility to be an offset partner for Dassault. That therefore, the thousands of crores to be received by RAL through the offset contract are substantially in the nature of commissions", the petitioners submit.

It is also stated that the French government as well as the Dassault Aviation company were told that this contract of 36 ‘ready to fly’ aircraft will be only given to Dassault Aviation, if they gave the major part of the offset contracts in this deal to Mr. Anil Ambani’s company.

The petitioners allege that the new deal was unilaterally announced without following any mandatory procurement procedure of the Defence Ministry.

The new deal gives undue benefit to Reliance Aerospace Limited(RAL), and the escalation of price of airplanes is to account for collateral considerations, alleges the petition. This would amount to "Criminal Misconduct" under section 13(1)(d)(ii) of the Prevention of Corruption Act, as applicable on the date of commission of offence.

It is further stated that "public servants presiding over the government got the critical persons involved and Contract Negotiation Committee to increase the contract price of the 36 Rafale aircrafts from Rs. 715 crore per aircraft as disclosed by Mr. Parrikar to Rs. 1660 crore per aircraft. This resulted in a pecuniary advantage to both, Dassault Aviation and also Mr. Ambani’s RAL This amounts to Criminal Misconduct under section 13(1)(d)(iii) of  the applicable Prevention of Corruption Act".

The petitioners state that their complaint filed before CBI on October 4 reveal commission of congnizable offences under PC Act, and the CBI was bound to register FIR and carry out investigation as per the dictum of Constitution Bench in Lalitha Kumari  case. Even no preliminary enquiry has been initiated till date, laments the petition.

Therefore, the PIL seeks to direct CBI to register FIR and initiate probe into the deal under the supervision of the SC. It also seeks to direct the Central Government to to cease and desist from influencing or intimidating in any way the officials that would investigate the offences disclosed in the complaint. The CBI officials handling the investigation should not be transferred or taken off charge and they should submit periodic status reports before the SC regarding the probe, prays the petition.

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