On Rafale, BJP is not corruption free but investigation free

Prime Minister Narendra Modi and BJP president Amit Shah during BJP Parliamentary Party meeting | PTI

BJP is finding it hard to defend Rafale deal on its technical and financial aspects, and thus turning to nationalism as a shield.

Looking at the BJP’s strategy of holding press conferences all over the country post the Supreme Court verdict on Rafale deal, it can be easily said that the ‘Modi Sarkar’ themselves are not confident about the strength of the judgment, and hence, feel the need to convince people about their non-existent innocence.

It is written in the Upanishads that “truthfulness supersedes a thousand horse sacrifices” — truth cannot be suppressed and is the ultimate victor.

When the party is finding it hard to defend the Rafale deal on its technical and financial aspects, it is turning to nationalism as a shield. The Congress party has made it loud and clear that it is not against Rafale per se nor it is against air force modernisation and capacity building. Rather it wanted the 126 planes, instead of the 36 being acquired by the Modi government.

Also read: India has a right to know how the CJI-led bench went wrong with Rafale judgment

The central questions around which the entire controversy revolves are the pricing of the fighter planes, diminution of the numbers and selection of a just-conceived private firm over HAL, the PSU that has proved time and again its prowess and competence in defence production, as offset partner. Both the government and the ruling party have failed to respond on these issues in a satisfactory manner.

After the Supreme Court ruling on Rafale issue, the BJP is questioning the oppposition demand for a Joint Parliamentary Committee to probe all aspects of the deal. Considering their strength in the Lok Sabha, it is obvious that the BJP will have a majority in the Committee, yet it is shying away from the JPC probe.

Even when the Supreme Court was considering the matter, the attitude of the government was intimidating. The Supreme Court on 31 October order had asked the government to submit pricing and offset partner details. The government reluctantly shared the details in a sealed cover but not before arguing that pricing details could not be revealed either to the Supreme Court or to Parliament.

A detailed study of the Supreme Court verdict on Rafale deal gives an impression that it has more or less kept itself away from the core issues of the deal such as pricing, sovereign guarantee and offset partner selection on pure ‘jurisdictional issue’ as it cannot perform the role of an ‘investigator’. Moreover, the decision of the apex court was supposedly based on the ‘misinformation’ supplied by the government side, which is now projected as a typographical error. Neither has the CAG sent any report relating to Rafale pricing to the Public Accounts Committee nor has any such report been laid on the floor of the House.

The government has intentionally misled the Supreme Court, thus, undermining its sanctity. The manner in which Prime Minister Narendra Modi first misled the voters on false poll promises and now, to escape investigation his government has misled the Supreme Court, it will not be out of place to call him the ‘Prime Misleader’.

Also reads: Rafale deal is Bofors many times over, what it lacks is a V.P. Singh

If a JPC examines the deal, it will not be tantamount to a review of the Supreme Court judgment. The committee of legislators will go through every aspect of the deal, even file noting, and a JPC is empowered to call ministers and even the Prime Minister to appear before it to present their side and for cross examination. The JPC probe will cover all aspects including the aspects on which the apex court preferred not to comment. If the government has nothing to hide and it has really followed a transparent procedure, then they should happily accept the demand and immediately constitute a JPC. This will help in breaking the deadlock in the Lok Sabha and the Rajya Sabha and Parliament can discuss other important and impending issues.

There is another argument that the CAG is already examining the Rafale deal and as per the procedure, CAG will submit its report to the Public Accounts Committee (which the government claimed has been submitted in its sealed cover affidavit to the Supreme Court) and the PAC report will be presented to the House.

So, what is the necessity of a separate JPC probe? Basically, this is a technical ploy by the government to avoid a detailed time-bound probe. As the auditor, the CAG is the guardian or caretaker of the national purse. It examines all major government deals and reports to the PAC. The mandate of PAC is limited to scrutiny of the CAG report and the issues raised therein. It cannot stretch beyond that. It normally expresses no opinion when it comes to policy matters and rather confine itself to losses in execution of the policy. On the other hand, the mandate of a Joint Parliamentary Committee depends on the motion constituting it.

Both the JPC and the PAC probe can run parallel, as it had happened in the case of 2G. The JPC was formed even when the PAC had already taken up the investigation. The BJP did not allow Parliament to function throughout the Winter Session in 2010 on the demand for a JPC. This time also two parliamentary committees can inquire into the same issue and there should be no conflict at all on this point.

The BJP seems to be suffering from political amnesia and has forgotten the basic rule that ‘what’s sauce for the goose is sauce for the gander’. How come when the BJP asked the price of INS Vikramaditya, Sukhoi and Mirage on the floor of the House, it was in national interest, but when the Congress asks the price it becomes anti-national?

Considering that the nation is yet to find a satisfactory reply directly from the government to certain inconvenient questions — why did government buy the same aircraft at Rs 1670 crore against the earlier negotiated price of Rs 526 crore, what was the reason for preferring a private party over HAL as offset partner and why we are purchasing 36 aircrafts against 126 for which the deal was finalised. A detailed probe is very much required and only the JPC can give answers to these queries. When India is paying Rs 351 crore more per aircraft compared to the rates sealed by Egypt and Qatar, and when former French President Francois Hollande who inked the deal is insisting that no choice was given to Dassault to select the offset partner and when the Supreme Court is being misled on vital facts, the government should allow the legislature to exercise its supervisory function and constitute a JPC to settle the matter once and for all. The BJP needs to realise that they now stand exposed and the truth is out that the Modi government is not corruption free but investigation free, and filing after-thought correction applications will not cover their broad-daylight Rafale corruption.

The author is a Supreme Court Lawyer and National Media Panellist of the Indian National Congress. The views are personal.