 Welcome to NewsClick, we are once again going to be discussing the Rafale scam with D. Raghut Nandan, our defence expert. Raghut, the petitioners have filed a review petition on the Rafale matter where they have asked the court and the three judge bench to review the matter in an open court rather than closed door also because the government itself has asked for modifications which they say is actually an application for review and disguise. But there are several issues that they have pointed out and certain several errors. The main thrust of their prayer is that the paragraph 25 which contains reference to the CAG report having been prepared and been given to the PC turned out to be erroneous. Let us begin with that. Raghut, what do you have to say about that? Well, you see clearly the court has either misunderstood or misinterpreted or been led to misinterpret the role of the CAG. It is not there English competence that is in this. I mean I would be extremely wary of pronouncing on the ignorance of three Supreme Court judges not just one of the English language. It looks to me as if the note which nobody has seen has sought to convey the role of the CAG in a manner that is open to misinterpretation and the court has interpreted it one way and has been led to do so by the language in which it had been written by the government in its note which seemed to suggest that facts had been placed before the CAG and then which went on to say procedurally that this would be placed before parliament and the PAC etc which the court has interpreted as saying this has been done. Now the language, the wording of the note may itself have been misleading but the fact is CAG knows about it, has been made aware of it and in fact the CAG has stalled on the issue of looking into this for over three years that itself should have been the subject of some inquiry or investigation or comment by the Supreme Court and the fact that it wasn't itself surprises me. But there is no CAG report. The question of having it being presented to the public accounts committee does not arise and therefore even the question of placing it before the parliament does not come into play. But on this whole question of sealed envelope, now sealed envelope contains material which are not by nature of affidavit. Do you find anything very disturbing about that because the sealed envelope is presented to a court which looks at it, which is not signed or in the form of an affidavit where the government can always take plausible deniability of you know and raise it and say that they are clean. What do you think, would you make of that in a matter of this nature? See there are several issues involved with this note. One is that it's an apparently an unsigned note. Nobody knows who is the author. It's not in the form of an affidavit. So one does not know who the note is from. Is it from the prime minister? Is it from the government? Is it from the cabinet? Is it from the attorney general? Nobody knows. So if one does not know the authorship of the note, what status does the note have for the court to base its ruling on that note. To me that itself is problematic. That the note is unsigned, unaward, is not stated in the form of a legal document and is therefore open to any refutation or denial. The petitioners point out something. Petitioners point out that if the government, they believe that the government was deliberately misleading the Supreme Court by using is rather than will. If they had replaced is, so with will they might have been better off. If they were being honest. The point is if the language of the note had been less ambiguous then I think the court may have interpreted the outcome differently. Maybe the court was led into believing that the CAG has placed the report before parliament which was not maybe what was stated in the note but this is something which we can't say since nobody has seen the note. The other issue that they have raised in their petition is the question of the conflation of conflating reliance industry with reliant structure. One owned by Mukesh Ambani, the other owned by Anil Ambani where the court is treating the company as one and the same. That is rather problematic. See this is a part of a series of problematic aspects of the Supreme Court ruling. They all stem from the fact that either the court should have said these are matters pertaining to defense and security. The court has no jurisdiction or the court has no interest at this stage to inquire into this and should have then said we have no further comment on this matter. Let concerned agencies, CBI, CAG, PAC inquire into it which was in fact what the petitioners had asked for that CBI should inquire into it. If the Supreme Court had made a set of pronouncements which this particular petition had not asked for it should have done so after inquiry which the court had no time for. They seem to have made all their rulings and order based purely on the statements of the government which the court seems to have accepted at face value. Or what was not said by the Indian Air Force officers? Well in the case of the Indian Air Force officers they asked the Indian Air Force officers fairly irrelevant questions about which generation of aircraft do these belong to which was not part of the petition or what they were asked to go in for at all. The court has also said that they had asked the Air Force officers about pricing and process which is not the case the court the officers were not asked these questions. The problem is as I said is that the court has decided to rule on process procedure and pricing without having gone into the issue. Without having itself conducted an inquiry or relied on agencies who could have been entrusted with such an inquiry. I don't think the court had either the time or the preparation or the expertise to have gone into all these questions at all and if that was the case why rule on it. What about privilege? The issue of privilege that the government tried to invoke. Now it has been pointed out by the petitioners Yashwant Sinar, Unshori and Prashant Bhushan in the petition that never before has privilege been invoked in this manner when the government has in other dealings with the south aviation for instance never felt compelled by privilege to hide the pricing details either from CAG or the public accounts committee. And in this case also it was made clear by the French government and by the French president that the issue of privilege pertains to issues of national security armaments etc. Pricing was up to the Indian government he stated very clearly as to what the Indian government wanted to share with parliament or with its people. So there was no particular privilege as far as pricing was concerned but once again the court seems to have accepted the government's statement at face value that there was a privilege attached to the price. The petitioners also referred to the role of Manohar Parikar where they point out Manohar Parikar is on record of having said that he played no role in it. That it was Prime Minister Narendra Modi and President Francois Hollande who discussed and came to this agreement on this deal and that he was not privy to those discussions. Gautam I will come back to the point that I have been making from the start of this interview as well as in our earlier interview when the Supreme Court ruling first came out. To me the most surprising part of the Supreme Court ruling is that they have pronounced on the legitimacy of the procedure involved without having gone into the details of the procedure itself. And having relied purely on the government's version of it whereas prima facie including facts placed in the note by the government itself shows that almost all procedures related to the change of the order from a 126 aircraft to 36 were done post facto. After the PM's announcement various other requirements such as the acceptance of necessity by the Air Force was done subsequently. Cabinet Committee on Security Clearance was done subsequently. How can any procedure be declared as valid if the entire process has been post facto. Then it renders the entire procedure in fractures and this includes declaration of the offset partner, conditions for the offset partner as to what qualifications the offset partner should have and when the contract was signed and not signed. All of these are procedures which have been actually done post facto but which the Supreme Court in its wisdom has accepted as in the normal course because the government has said so. Once again I find it astonishing that the Supreme Court should have made such rulings without either its own inquiry or inquiry by a competent agency which was in fact the plea of the petitioners. In fact the petitioners start by pointing out that one of the main prayers was for registering an FIR by the CBI and the Supreme Court has not addressed that prayer at all. So there is also a serious lapse in the judgement. For example if process is involved the correct agency would have been the CAG to make a final pronouncement or before that the CBI if the FIR had been registered to find out what the procedures were and the sanctity of post facto ratifications if you like of processes including interference in the process by the National Security Advisor who has no local standard in the defence procurement procedures whatsoever. I was going to come to that because the petitioners add that subsequent to their original petition there are new facts that have come in the public domain through the caravan story which makes it very clear that the negotiating team was split and that three senior members objected to hiking of the benchmark price from 5.2 billion to 7.8 billion dollars. Now this is new evidence that has come in which also refers to the fact that the government waived the need for sovereign guarantee nor did they bother about bank guarantee from the salt aviation for 1.2 billion euros that were given to them as advance. Make a very powerful argument in favour of reopening of the issue would you agree? Absolutely because to my mind from the outset the main issue has been a complete disregard to process and procedure. That this was an arbitrary decision announced by the Prime Minister subsequently ratified or compelled to be ratified by relevant agencies because the Prime Minister had made a commitment in public which then required such ratification to be done and in the case in which you mentioned on pricing etc. in an unprecedented move it was the cabinet committee on security which had to intervene and overrule all those under normal circumstances any such extraordinary measures such as post-facto ratifications, post-facto acceptance of necessity, post-facto clearances by cabinet committee on security would itself have called for special investigation by somebody or the other. Correct. If it's not by the CAG then by the CBI or by a joint parliamentary committee none of which has happened but unfortunately the Supreme Court has contributed to a whitewashing of this by ruling based on an anonymous government. Trying to put the lid on an issue which deserves to be. Which has effectively put the lid on it whereas it has not in the sense because you have gone only by the averment by one side in a sealed cover of a note which has not been made public or even given to the petitioners. You were referring to the presence of India's national security advisor as part of the negotiating team whereas the negotiating team itself is supposed to be a team which has to remain independent autonomous. That's right. And not anybody can be deputed to that, at least of all NSA. Even this seems to have escaped. In fact, Gautam, the rather long and complex defense procurement procedure which has gone through a series of amendments over 10 years seeks to provide precisely for a sequential steps of autonomous expert bodies to comment on, discuss and then place its opinion or its decision on relevant issues one after the other so that there is full transparency, consideration of all factors and processes taken into account. If all this can be brushed aside by a pronouncement by the prime minister at a press conference and then subsequent ratifications and painting over everything with a brush then it renders infractuously entire process of procurement and I'm seriously astonished that the Supreme Court should have lent its voice to this kind of dealing with the defense procurement procedures. Thank you, Raghu. This is all for now but Rafal's scam is not going away anytime soon. We'll be back to discuss it when new revelations come to a notice. Thank you for watching NewsClick. Send us your feedback if you have anything to say to us.