Rafale Review: How Did The Govt Know In Nov 2018 The Details Of CAG Report Submitted In Feb 2019? Prashant Bhushan

Review Petitioners' Arguments seeking review of Rafale JudgmentPrashant Bhushan"Your Lordships' judgment (of December 2018 of which review is sought) proceeds on the basis as if all of us were seeking cancellation of the (Rafale) contract. We wanted an investigation on the basis of our complaint to the CBI which is governed by the Constitution bench judgment in Lalitha Kumari- FIR has to be registered; even the preliminary inquiry has to be completed within one week to ascertain the veracity of the complaint and then FIR has to be registered...material errors of fact have crept into the judgment based on incorrect information supplied by the government in two notes- one on procedure, which was given to us, and the other on pricing which was only given to Your Lordships. There has been suppression of material facts in that note...now new information has come to light which has a vital bearing on whether there should be an investigation or not...", Advocate and petitioner-in-person Prashant Bhushan explained the grounds for review. "Your Lordships' judgment is based on what the government told the court- that the government has already shared the pricing details with the CAG, that the report of the CAG is examined by the PAC and Only a redacted version of the report, excluding pricing details, is placed before the Parliament and in public domain. Then, the government sought to clarify that by 'is' they meant that details 'will be' given to the CAG, the CAG report 'will be' examined by the PAC and placed before the Parliament and in the public domain, and that it 'will be' redacted. I can understand if anyone in the government made a grammatical error or even the court read 'is' as something already done instead of something that 'will be' done. But never have the pricing details ever been redacted before! So how did they know in November that in the report submitted in February, the pricing would be redacted? In its 'dissent note' at the start of the audit report, the CAG says that a request was received in January to redact the commercial details but the CAG was reluctant to carry out the redaction on account of lack of precedence! But when the Defence Ministry reiterated the request citing national security concerns, the details were eventually redacted...And now the government says that the CAG report has come which declares that all is well (in the Rafale deal) and hence, the review plea should be dismissed? How can we rely on this CAG report when the government knew in advance of an unprecedented redaction from it?", he urged. "The government told you, without an affidavit, that the CCS (Cabinet Committee on Security) had met on August 24, 2018 when everything was settled and that there were no meetings after that and the contract came to be finally signed in September. But we find there was another meeting where 8 standard anti-corruption clauses were dropped for this deal alone! The DAC (Defence Acquisition Council) met in September to approve and ratify the non-inclusion of standard DPP (Defence Procurement Procedure) clauses on arbitration, access to books of accounts, penalties for "use of undue influence" and "agents/agency commission"! This was absolutely critical because the Procedure stipulates that if you engage a middleman- if you employ a commission agent- your contract is cancelled and fine is levied! Why was this dropped? Why was the court not informed that this had transpired after August 24? Their reply affidavit is also totally silent on this! This fraud alone vitiates the judgment and calls for a thorough court-monitored criminal investigation!" Next, he pointed out that 3 expert members of the Indian Negotiating Team (INT) had specifically objected to the final price for the whole Rafale package shooting up to 8 billion Euros while the benchmark price was determined at 5 billion Euros. Calling it "exorbitant and unrealistic", they had opined that "the reasonability of price offered by the French Government is not established". "You said this deal would of the same configuration as the MMRCA. Now you are offering deficient jets as compared to the MMRCA and charging more in the name of India-Specific Enhancements? The three experts say you had to provide this anyway, and only at a better price!", advanced Mr. Bhushan. On the waiver of the Sovereign/Bank Guarantee, he submitted, "Huge amounts are to be paid to the French industrial suppliers, and not to their government, prior to the delivery...They have already paid half the price with no delivery in sight...the French side gave no Sovereign or Bank Guarantee, only a Letter of Comfort which is of no comfort whatsoever...it is part of our procedure to seek such guarantee as a risk-mitigating measure...The government says we don't also seek such guarantees from Russia. But the Russian companies are government-owned companies! Dassault is not" He proceeded to discuss the impractical delivery schedule- in the MMRCA...

Rafale Review: How Did The Govt Know In Nov 2018 The Details Of CAG Report Submitted In Feb 2019? Prashant Bhushan

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Rafale Review: How Did The Govt Know In Nov 2018 The Details Of CAG Report Submitted In Feb 2019? Prashant Bhushan

MEHAL JAIN

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