New Delhi: The Modi government has claimed that unauthorised “photocopying” of classified documents related to the purchase of 36 Rafale fighter jets from France tantamount to theft.
In its affidavit filed Wednesday, the Modi government said these documents, originally attached in a plea seeking a review of the December 2018 Rafale verdict, are sensitive to national security as they relate to the war capacity of combat aircraft.
The plea was filed by activist lawyer Prashant Bhushan and former Bharatiya Janata Party (BJP) leaders Arun Shourie and Yashwant Sinha.
The government affidavit said the petitioners are using documents accessed without authorisation with “the intention to present a selective and incomplete picture of internal secret deliberations on a matter relating to National Security and Defence”.
Invoking sections of the Indian Penal Code (IPC), the government claimed privilege saying the documents don’t fall within the purview of public scrutiny.
It added that the documents also fall outside the purview of RTI and required permission from the government to even be submitted in the apex court.
“Without consent, permission or acquiescence of the Central Government, those who have conspired in making the photocopy of these sensitive documents…thereby committing theft by unauthorized photocopying of such documents have adversely affected the Sovereignty, Security and Friendly Relations with the foreign countries,” reads the affidavit.
On 5 March, the Modi government had told the apex court that the documents used by The Hindu for its investigative reports were stolen and that it was planning to prosecute its chairman and reporter of the articles, N. Ram, under provisions of the Official Secrets Act.
However, two days later, Attorney General K.K. Venugopal clarified the government’s stand and said he meant that the documents used were “photocopies of the original”.
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‘Misleading the court’
In its affidavit, the government said it has initiated an internal inquiry to identify where the “leakage (of the documents) took place” to ensure that the “sanctity of decision making process in governance is maintained”.
The documents present an incomplete picture and fail to bring out how the issues “were addressed and resolved and necessary approvals of the competent authorities taken”.
The selective and incomplete presentation of the facts and records by the petitioners are intended “to mislead this Hon’ble Court into deriving wrong conclusions which is very damaging to National Security and public interest,” said the affidavit.
The Centre filed its affidavit after a batch of pleas sought a review of the apex court judgment in the Rafale case, which said that the deal didn’t need scrutiny.
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In strict law, photocopying of a classified government document may be both theft and a violation of the OSA. No journalist worth her salt may be innocent of this “ crime “. The issue that has now crystallised before the apex court is to see whether / how these contents being publicised have harmed national security.
I feel that the court may allow illegally obtained documents admissible as evidence. Although this may be so, even if these documents are produced in the SC, the government can easily counter the arguments of the petitioners based on facts contained in the CAG report. Let us now turn to objections raised by the Hindu articles on the deal : (1) Modi’s decision to buy 36 Rafales shot the price of each jet up by 41%: This is the most erroneous argument. The arithmetic and percentage worked out is wrong. Furthermore, even with the reduced price, the cost of buying 126 rafales was astronomical. In 2016 it would have cost us Rs.1.7 trillion to buy 126 rafale jets!. The argument that if you buy more, you will get them .cheap has no logical validity. Had India decided to buy 300, the price would have further reduced. The moot point is where was the money to buy them? (2) Defence Ministry protested against PMO undermining Rafale negotiations : These can be seen as inter-ministerial wrangling. How can one say that the PMO had no authority to monitor the proceedings? The official who wrote the concerned note has clarified in this regard. Furthermore, it cannot be said that this weakened India’s bargaining position. The undeniable fact was it was already weakened due to unexplained delay on the part of the UPA government and its failure to conclude the contract in 2012. In the interregnum period from 2012 to 2015, Dassualt Aviation (DA) received orders from Egypt and Qatar, whereas India’s need to buy these aircraft aggravated. The dissent note submitted by three members of Indian Negotiating Team (INT) highlights the fact that DA had a very tight production schedule. The inactive and passive tenure of A.K. Antony has cost India very dearly. (3) The government waived anti-corruption clauses in the Rafale deal : The government has clarified that in the past integrity clauses were often given a miss. Several big-ticket purchases by the three service arms do not have either an integrity clause or a sovereign guarantee. For instance, the Manmohan Singh led UPA-government negotiated the purchase of heavy lift transporters from the US through the Foreign Direct Sale route (FMS) that did not have an integrity clause or a sovereign guarantee, one of the officials said. The 10 C-17 strategic lift aircraft cost the exchequer $ 4.1 Bn. Similarly, the six US-made C-130 heavy lift aircraft bought in 2010 for $ 1bn came without any integrity clause or sovereign guarantee. Similarly, equipment and hardware from Russia, too, come without either of these. The Su-30Mki – the current frontline fighters – bought in the 1990s and early 2000 came without these, Air Marshal SBP Sinha, who headed the team that negotiated the Rafale deal had confirmed to news agency ANI that previous government-to-government contracts with Russia and the United States do not have the anti-corruption clause. According to DPP 2013, equipment bought from friendly countries need not follow the “Standard Procurement Procedure” (SPP) or “Standard Contract Documents.” The section of the DPP that deals with Intergovernmental Agreements (IGA) says; purchases made “would be based on mutually agreed provisions by the Governments of both the countries.” (4) No bank guarantees meant a more expensive new Rafale deal: This issue needs to be discussed in detail. Let us begin where it started. Para 14 of the India-France Joint Statement during the visit of Prime Minister to France (April 9-11, 2015), stated as under :
“The two leaders agreed to conclude an Inter-Governmental Agreement for supply of the aircraft on terms that would be better than conveyed by Dassault Aviation as part of a separate process underway; the delivery would be in time-frame that would be compatible with the operational requirement of IAF; and that the aircraft and associated systems and weapons would be delivered on the same configuration as had been tested and approved by Indian Air Force, and with a longer maintenance responsibility by France.”
Needless to add that such joint statements cannot be considered as binding contracts. Furthermore, the commitment that ‘terms would be better than the process underway’ is very vague. It amounts to comparing apples with oranges, inasmuch as the earlier process was in a bid form and never fructified as a binding contract. Furthermore, the deals were structured so differently that the earlier bid as a benchmark for comparison exercise becomes presumptuous. Still the alignment was completed by INT with great difficulty. The table is furnished in the Hindu article dated 8th March, 2019. The summarised position is as under: (figures in € million)
Group Designation of Supplies/Services Bid Aligned cost Final Offer
I to XI Aircrafts Package Grand Total 4535.25 7488.58 7168.57
Weapons Package Grand Total 526.86 718.29 710.41
Total 5062.11 8206.87 7878.98
The groups include : (1) 36 flyaway aircraft (2) ISE Equipment fitted on aircraft (3) Role Equipment (4)Tools,Testers & Ground Equipments(5) Spares (6) Simulator Package (7)Operational Equipment & HUMS (8) Documentation (with figures of 0, 79.73 and 79.72 in the respective three columns) (9)Associated Services (10) Performance Based Logistics (11) Simulators and Training Aids Annual Maintenance
I fail to find bank guarantee costs being included either in the bid or in the aligned costs. The very presumption that DA had agreed in its earlier bid to provide bank and performance guarantees needs validation. The CAG Report states that “the DA’s price bid was non-compliant as it was incomplete and was not in prescribed format. The L-1 committee filled up incomplete entries by culling out figures given elsewhere under different headings of the price bid.” Under such circumstances the doubts would persist regarding what the earlier bid exactly contained and why the above numbers do not include bank guarantee costs anywhere. Furthermore, the Bank Guarantee of €574 million cost as worked out INT and in the dissent note was an assumed figure based on a view submitted by SBI. Actual cost would have depended on negotiations between DA and its bankers; as such it was not quantifiable. Under such circumstances, it was bad accounting to reduce the amount of €574 million from the aligned cost and then to conclude that the aligned price was better than that in the final offer. The CAG was fully justified in not considering this figure in their report. The only validated fact is that had DA passed on the saved cost of BGs forgone to India, the final price would have further reduced. (So, the reduction was to be made from the Final Offer and not from the aligned cost). Thus, in no way the aligned cost becomes better than the Final Offer.
To conclude, one must say that in any bargain, the parties have to make some sacrifices in order to secure some gains. It is wrong to simply harp on the sacrifices made without considering the benefits secured. These can be summarised as under:
(1) In the earlier bid there was no clarity regarding who would assume responsibility of the quality of production to be made at HAL, India. DA simply refused to assume responsibility. This made the earlier bid simply untenable. I may add that the CAG report categorically states that Rafale maker Dassault Aviation (DA) did not fulfill request from proposal (FRP) requirements at the stage of technical evaluation committee with respect to air staff qualitative requirements, warranty clauses and an option clause. “The proposal of the vendor should have been rejected at the TEC stage itself”, the CAG said. The proposal of the competitor, Aeronautic Defence and Space Company makers of Eurofighter planes was also non-compliant of the FRP. Thus an absurd scenario had emerged that proposal of no bidder was compliant!. Furthermore, HAL’s quotation of man hours at a factor of 2.7 to DA significantly increased the cost of Rafale jets and DA was no longer L-1 bidder. The decision to buy only 36 planes through IGA route avoided all this confusion.
(2) Under IGA route offset is not mandatory. The government waived it completely for the S-400 missiles deal with Russia. Nevertheless, in this case, the actual offset was higher at 50% as against stipulated 30%. What about benefit to the economy, more than 30 offset partners and inflow foreign currency? The benefit remains unquantifiable.
Probably, the BJP government forgot add that provided they are in power and also selectively leak government documents for use against Opposition. Out of power, national and security interest take back seat. The document which are now in public domain, nothing is there which jepordise country’s security.