Prashant Bhushan urges SC to review Rafale deal order

Supreme Court lawyer and activist Prashant Bhushan on Thursday told the apex court that its judgement in the Rafale deal issue should be recalled and reviewed since it was obtained by the government through "multiple falsehoods and suppression of material" and relevant information. In a rejoinder in the case filed by former Union Minister Yashwant Sinha, he dismissed the contention of the government against review of the judgement on grounds of national security, that the petitioners cannot ask for a roving and fishing inquiry on the basis of "subsequent" media reports and that the CAG had not found any wrongdoing in his report.

Bhushan maintained that the CBI did not take any action on the petitioners' plea for a CBI probe into the Rafale deal and their prayer was dismissed as if they were seeking a cancellation of the contract or review of the contract. He said the procurement contract suffered from various problems like the ex post facto AON was granted on May 13, 2015, after the announcement of the deal on April 10 of the same year and that parallel negotiations were being conducted by officials in the PMO which were objected to by the Defence Ministry.

The rejoinder affidavit also said there were objections of the ministries of Law and Defence to the removal of various Standard Clauses of the contract such as Sovereign Guarantee and Seat of Arbitration considered necessary for the deal as it was an Inter-Governmental Agreement. Bhushan allegation that the goverment misled the court on various counts in the notes that were submitted in a sealed cover. The government has also suppressed material and relevant information from the court and obtained the impugned judgement on the basis of "fraud" upon the court.

"That even now the government is not disclosing that contrary to what was submitted in the sealed covers, the Cabinet Committee on Security met once again in September 2015 to, among other things, drop Standard Clauses which were meant to ensure probity, transparency and check corruption," it said. Bhushan said the continued suppression of relevant and material information by the government was the main reason for the petitioners to seek production of relevant and material documents before the Court which cannot be considered as seeking a "fishing and roving inquiry".

He also urged the court that the CAG report on which heavy reliance was sought to be placed by the government should be assessed in the light of various factors. The petition listed the factors as the government predicted that CAG would redact the final report and it has. This was despite the CAG's admission that there was no precedent for redacting commercial details from an audit. The CAG's report was silent on the parallel negotiations and on the dropping of the Standard Clauses meant to ensure probity and transparency in every procurement.

The CAG report also conceded that waiver of Bank Guarantees was saving for Dassault and yet it failed to account for the impact of the same when stating the 36 aircraft procurement was 2.86 per cent cheaper than the 126 aircraft procurement. The Indian Negotiating Team domain experts had calculated the impact of Bank Guarantees at 574 million Euros.

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