Yashwant, Shourie, Bhushan Move SC Seeking FIR in Rafale Deal

The petition came two weeks after SC had asked the Centre to provide details of the Rafale deal by 29 October.

Photo used for representation.

(Photo: Altered by The Quint)

Former Union ministers Yashwant Sinha and Arun Shourie and activist lawyer Prashant Bhushan on Wednesday, 24 October moved the Supreme Court seeking registration of an FIR into the Rafale fighter jet deal between India and France alleging "criminal misconduct" by high public functionaries.

They have sought a direction to the Central Bureau of Investigation (CBI) to investigate the offences mentioned in their complaint in a "time-bound" manner and submit periodic status reports to the apex court.

The complaint was filed on 4 October with the CBI after their meeting with CBI Director Alok Kumar Verma, who was late Tuesday night directed by the Centre to proceed on leave in the wake of feud with the second-in-command in the agency Rakesh Asthana.

The petition by the trio came two weeks after the apex court had on 10 October asked the Centre to provide details of the decision- making process in the Rafale deal with France in a sealed cover by 29 October.

It had clarified that it does not want information on pricing and technical particulars. The court's order had come on two PILs filed by advocates M L Sharma and Vineet Dhanda.

Background

India signed an agreement with France for the purchase of 36 Rafale fighter aircraft in a fly-away condition as part of the upgrading process of the Indian Air Force equipment.

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

Indian Air Force had advanced a proposal to buy 126 fighter aircraft in August 2007 and floated a tender. Following this, an invitation was sent to various aviation companies to participate in the bidding process.

Plea By Sinha, Shourie & Bhushan

The fresh plea by Sinha, Shourie and Bhushan claimed that in 2007 tenders were issued by the Ministry of Defence for the purchase of 126 fighter aircraft and it was specified in the Request for Proposal that 18 of these aircraft 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.

The plea said that Dassault Company manufacturing the Rafale aircraft was declared the lowest tenderer and thereafter price negotiations began which were at a very advanced stage by 25 March, 2015.

“However within 15 days of this, the Prime Minister of India and the President of France announced a totally new deal jettisoning the virtually complete 126 aircraft deal and the Prime Minister on behalf of India agreed to purchase only 36 Rafale aircraft in a ‘fly-away’ condition without any transfer of technology and make in India.

"It later turned out that the new deal involved 50 per cent 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 to a company of Anil Ambani which had just been set up," it claimed.

The plea alleged that new deal gives undue benefit to Reliance Aerospace Limited (RAL) and the escalation of price of airplanes is to account for collateral considerations.

It 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 aircraft from Rs 715 crore per aircraft as disclosed by then Defence Minister Manohar Parrikar to Rs 1660 crore per aircraft. This resulted in a pecuniary advantage to both, Dassault Aviation and also Ambani’s RAL. This amounts to Criminal Misconduct under section 13(1)(d)(iii) of the applicable Prevention of Corruption Act.”

They said that when the final contract was signed after price negotiations, the price of the aircraft had been increased to more than double to what was under consideration in the old deal of 126 aircraft.

"It is clear therefore that the following acts were committed by various public servants which amount to offences under the Prevention of Corruption Act...

‘No Fir Registered Till Date’

"However, it is clear that there is enormous pressure on the CBI because of the nature of the persons involved not to undertake this investigation. Till date not even an FIR has been registered in the matter and hence the petitioners are approaching the court for getting specially designated officers in the CBI to investigate this case and for this court to monitor the investigation," the plea said.

It said that the petitioners were aggrieved by the non-registration of FIR by the CBI on their 32-page complaint with 46 annexure detailed prima facie evidence of commission of cognisable offences under the Prevention of Corruption Act by public servants occupying the highest of public offices in the country.

“The highest ranking public officials, unilaterally, in violation of all mandatory procedures, without obtaining any Services Qualitative Requirement (SQR) from the Indian Air Force, or any decision of the Categorisation Committee or any Acceptance of Necessity from the Defence Acquisition Council, entered into a Memorandum of Understanding with the French regarding purchase of just 36 Rafale aircrafts, all in a ‘fly away’ condition with no Transfer of Technology and no Make in India,” it alleged.

The plea has also sought direction to the Centre to cease and desist from influencing or intimidating in any way the officials that would investigate the offences mentioned in the complaint and not transfer the CBI officials tasked with investigation.