‘Another nail in the Rafale coffin’

Interview with Prashant Bhushan, lawyer-activist.

THE Supreme Court lawyer and activist Prashant Bhushan, along with former Union Ministers Arun Shourie and Yashwant Sinha, had petitioned the Supreme Court seeking directions to the Central Bureau of Investigation (CBI) to initiate a probe into the Rafale deal. Aggrieved that the court on December 14, 2018, dismissed their petition along with that of others, who sought the quashing of the deal, the three petitioners filed a review petition pointing out errors apparent on the face of the record of the judgment. While the review petition is pending, they filed an application before the court on February 15, seeking registration of forgery charges against the Central government functionaries responsible for submitting false information to the court in the Rafale case. 

Excerpts from the interview Prashant Bhushan gave Frontline:

N. Ram’s exclusive reports in “The Hindu” have made fresh disclosures about the Rafale deal. What impact will these have on your review petition?

Today [February 15] we filed an application alleging perjury against the government. We have said that the fresh information has shown that the information submitted to the court by the government in sealed covers was false in several respects. Our review petition is pending before the Supreme Court. It should now allow the review and recall the judgment.

The Centre has misled the Supreme Court by furnishing incorrect information. The information provided in a sealed cover to the court has been found to be untrue. It stated that the government was in negotiation with the industrialist Anil Ambani in 2012, but actually talks were held with his brother, Mukesh Ambani. Anil Ambani had nothing to do with the negotiations. The deal was not a mere case of corruption. The decision has broken the backbone of the Indian Air Force [IAF]. The IAF had sought seven to eight squadrons consisting of 126 fighter planes. The government brought it down to 36. It was meant to benefit Anil Ambani. The government has tinkered with national security.

The government had said that price negotiation was done by a price negotiating team. The recent expose, however, reveals that the Prime Minister’s Office and National Security Adviser Ajit Doval were involved in the negotiation. It was furnished that the government was able to secure the best price for the fighter jets. What emerges now is that the assertion was baseless.

The Chief Justice of India (CJI), Ranjan Gogoi, observed that there were some defects in the review petition and that has come in the way of scheduling its early hearing.

Our review petition was numbered on January 14. The government's application for modification of the order was numbered on January 8. There is no impediment.

In its December 14, 2018, judgment on the Rafale deal, the Supreme Court expressed its inability to intervene because it understood (erroneously then) that the pricing details had already been shared with the Comptroller and Auditor General (CAG) and that the report of the CAG had been examined by the Public Accounts Committee of Parliament. The Supreme Court was under the impression that a redacted portion of the report was placed before Parliament. With the CAG now placing its report on the Rafale deal in the public domain, can the court say that its judgment is valid in substance, though on December 14, 2018, it would have appeared premature?

No, because the CAG did not go into many things—the dissent note submitted by three of the seven members of the Price Negotiating Committee; why the “integrity” clauses were withdrawn; the procedure; and offsets. We have mentioned many things in our complaint to the CBI—procedural violations, the choice of the offset contractor, etc. The CAG report does not answer these things.

There is now information that Anil Ambani met the French Defence Minister, Jean-Yves Le Drian, about two weeks before April 10, 2015, when Prime Minister Narendra Modi signed the deal with the French President. Thus, he already knew that a memorandum of understanding was going to be signed. At that time, neither the Defence Minister nor the Foreign Secretary knew about it.

Was it a wrong strategy to approach the Supreme Court in the beginning? Did it become necessary because the court was already seized of two public interest petitions filed by persons allegedly with dubious claims? With more disclosures in the public domain, there is no hope that the court will intervene. On the contrary, the court’s refusal to intervene, while partly giving the Centre a clean chit on the issue, seems to have weakened the demand for a probe by a Joint Parliamentary Committee (JPC).

It’s not a question of them approaching first. You see, we got alarmed when, instead of dismissing the mala fide  and bogus petitions, whose only objective was to get a clean chit for the government, the CJI, passed an order saying that the court would like to know from the government the procedure and asked it to give it in a sealed cover. We thought that since the Supreme Court was going to deal with this and they would have a walkover with collusive petitioners and the government on the same side, we should file a petition.

In the changed circumstances, do you think it makes sense to persist with the review petition because the outcome is not likely to be clear?

The court has given a judgment that is grossly wrong because it relies on what it was told by the government, some of which were refuted by us in our petition and in our rejoinder; others stand refuted today with fresh information emerging. Therefore, the review was certainly worth filing. What the court will do with it is a different thing, but at least these things will now come out in the public domain.

Depending on the legal outcome, how will this play out in the political arena? Does Rafale still hold as an election issue?

It does. So many revelations have been coming out, putting more nails in the coffin and strengthening the public perception that this was a corrupt deal.

Your review petition makes substantive pleas for reconsidering and even recalling the judgment. Do you think it has to be an open hearing of the case?

We have asked for an open hearing of the review petition. We have pointed out the errors apparent on the face of the record and you know all the traditional grounds for review. Those are what we have pointed out. But in view of the government's application for correction, which has to be heard in open court, the review needs to be heard in open court.

If the court directs an FIR to be registered, would that satisfy your demand?

Unless the court monitors that and forms a credible investigative team within the CBI, this investigation will be farcical, given the present state of the CBI. In my view, a JPC probe should also be done. All the three should be there: JPC, CAG, FIR. But the CAG has done a dishonest job on the price by not taking into consideration the opinion of these three people [Defence Ministry experts]. They have not gone into offsets or procedure. 

On pricing, how do you think the court is wrong in coming to the decision it made?

The court said that there was a CAG report, which was not there. It said that the government had claimed that it was cheaper, but then it added that judges were not experts to go into pricing. The CAG has now pointed out that the benchmark price has been unreasonably increased by more than 50 per cent.

They say that the three experts constitute a minority in the committee.

Even then there are so many gross errors. The CAG’s report says that if you take into account the cost of the bank guarantee, then the new price is higher, not lower. The delivery schedule is also worse.

But in its December 14 judgment, the court expressed its inability to exercise its jurisdiction under Article 32, which has been invoked in the case.

Yes, but we have come to the court for court-monitored criminal investigation. The court has entertained this plea on numerous occasions. In the Vineet Narain, 2G and the coalgate cases, it was the same. They did not deal with our prayer for an investigation. They thought they were dealing with a petition for the cancellation of the contract and decided it on that basis.

You are taking the Prime Minister and other authorities head-on in this case. What are the ramifications of this?

The government has filed a contempt petition against me on the basis of some tweets asking whether the government had given false information. It refused to share a copy of the minutes of the meeting where it claimed that the selection committee had approved the appointment of Nageshwara Rao as the interim Director [of the CBI]. The Leader of the Opposition, Mallikarjun Kharge, who was a member of the selection committee, had written a letter saying that the issue was not discussed or decided at that meeting, and therefore, the appointment of Nageshwar Rao was illegal. I asked him [Kharge] again, and he confirmed that it was not discussed or decided. So, on that basis, I tweeted that this was at variance with what the Leader of the Opposition said, and therefore, it appeared that the information submitted by the government to the court was incorrect and perhaps they had submitted fabricated minutes of that meeting. So, I was perfectly justified in saying that.

In any case, how does it amount to contempt of court? I did not say anything about the Attorney General or the court. I only said that the government seemed to have misled the court. They are saying that Kharge had signed the minutes which said that the government may appoint or make a suitable arrangement. It does not mean that they had selected Nageshwar Rao. The court was told that the selection committee had selected Nageshwar Rao. Clearly, this application is an attempt to muzzle and prevent me from speaking about public interest cases.