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Rafael Judgment has Many Silences and Contradictions

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By Sudhansu Mohant

To someone who has spent a lifetime in the intricate world of defence procurement, with its accompanying pitfalls and humongous expenditure of public money, and has fought every conceivable battle to protect public money, and ensure financial and intellectual honesty, the Supreme Court’s judgment on the Rafale deal is lacerating.

With due respect to the Honourable Bench, one wonders how the highest court of the land could go so egregiously wrong on a matter that bristles with every conceivable wrong, and challenges in a way the very foundation of the rule of law.

 

The Hon’ble Bench starts off with a wrong premise in Para 4, remarking that ‘Things remained quiet until sometime in the month of September 2018, when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India. This seems to have triggered off the writ petitions under consideration.’

The fact is, there was serious disquiet not only when the intergovernmental agreement or IGA was signed on September 23, 2016, but much before, and also during the period when the IGA was under construction following the announcement by PM Modi in April 2015 to ex post carry out the direction.

Now to Para 9 of the judgment on the tender, which holds inter alia that: ‘The triple ground on which such judicial scrutiny is permissible has been consistently held to be “illegality”, “irrationality” and “procedural impropriety”.’

These then become the litmus test and prism to view the three broad areas of concern examined in the judgment, namely (i) the decision­making process, (ii) the difference in pricing, and (iii) the choice of the Indian offset partner or IOP.

The decision­making process is dealt with in Paras 16 to 23, which are the crucial part of the judgment – and doubtless where the Hon’ble Court could have examined the issue threadbare. But it is here that the most remarkable observations have been made.

Para 20 of the judgment refers to the petitioners seeking questions about the ‘Letter of Comfort’ replacing ‘Sovereign Guarantee’. This is an extremely serious issue – but the judgment contains no further resolution or orders on it.

‘Sovereign Guarantee’ or its inadequate replacement ‘Letter of Comfort’ can’t be glossed over because it involves taxpayers’ money, and the lack of a sovereign guarantee from the French government may jeopardise public funds. But sadly nothing on this is forthcoming in the judgment.
To come to Para 22, I would have appreciated it if the Court had judged the process of acquisition as an appellate authority in all its aspects, rather than judging a few aspects and observing:

‘We have studied the material carefully… We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court… there is a financial advantage to our nation…

‘Broadly, the processes have been followed. It is also a fact that the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RFP could have resulted in a contract is of no use. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP. We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126.’ (Emphasis added)

‘This is despite the fact that even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircrafts. Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th Generation, but even 5th Generation Aircrafts, of which we have none. It will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.’

In the Defence Ministry’s acquisition wing the Defence Procurement Procedure (DPP) is considered sacred, and deemed a Bible where no transgressions are permitted. One wonders if the processes can be only ‘broadly followed’ or permit ‘minor deviations’.

Likewise, Para 25 on pricing boggles the mind:

‘The pricing details have, however, been shared with the Comptroller and Auditor General and the report of the CAG has been examined by the Public Accounts Committee.

Only a redacted portion of the report was placed before the Parliament, and is in public domain… The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience.’

These remarks stand out because there is no information in the public domain or in the affidavit filed by the respondent. How, when, and wherefrom this information has been captured, recorded, and contained in the judgment ought to have been clearly referenced.

Now that the government has made an application to the Supreme Court to correct the ‘grammar’ error that inadvertently crept in based on the secret note submitted to the Hon’ble Bench, it raises suspicion if some other information contained therein (and not shared with the petitioners) hasn’t influenced the judgment.

Para 26 too bristles with contradictions. The Hon’ble Court is indeed very right in observing that ‘it is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present.’

But going by the same logic I wish the judgment didn’t contain such lines as:

‘We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP as well as under the IGA. We have also gone through the explanatory note on the costing, item wise… Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircrafts. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package.’

The contradictions here, in the process of arriving at the judgment, are so obvious, so palpable, and so glaring, that sadly its very moral foundation seems shaken to the core.

Para 28 of the judgment must not be overlooked either. To quote inter alia:

‘The complaint of the petitioners is that the offset guidelines contemplate that the vendor will disclose details about the Indian Offset partner however, in order to help the business group in India in question, an amendment was carried out in paragraph 8 of the Offset Guidelines that too with retrospective effect.

‘By virtue of the said amendment it is contended that cloak of secrecy is cast about the Offset partner and the vendor is enabled to give the details at a much later point of time. It is contended, however, that other provisions of the Offset Guidelines remain unamended, and, therefore, Government cannot pretend ignorance about the Indian Offset partner as has been done in the affidavit filed.’ (Emphasis supplied)

As I have said elsewhere, amending the Offset Guidelines is not morally right and it shouldn’t have been done, because it brings no added benefit to the government.

Hypothetically speaking, if the foreign vendor makes a company with no credibility and no experience in defence production its Indian partner, the public ultimately is the loser.

In the Third RamnathGoenka Memorial Lecture in July 2018 the incumbent Chief Justice of India RanjanGogoi said that ‘independent judges and noisy journalists are democracy’s first line of defence… Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.’

He added, ‘I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.’

Para 33 of the Rafale judgment, in asserting that ‘mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides’, seems to be a complete negation of what Chief Justice Gogoi (who authored this judgment) said only a few months ago.

What is more disturbing is the fact that while the words of a former President of France are not acceptable to the apex court, the credence of ‘categorical denial of the statements made in the Press, by both the sides’ on matters relating to offsets is deemed beyond question.

How fair it was to say that the “perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters’, it is best left for the Hon’ble Bench’s conscience to satisfy itself, and for the citizens of this country to mull and judge.

I would be remiss if I too didn’t hearken to my conscience to say that the Hon’ble Court has, among several other issues, completely overlooked a very, very important aspect: the transfer of technology, and indigenous licensed production in India.

This is too glaring an issue to be ignored – costly in terms of monetary value and technical knowhow, and one which will haunt the country for years to come.
It strikes at the very heart and soul of a resurgent India.

(Courtesy: thecitizen.in)


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Opinion

India’s perilous obsession with Pakistan

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By Nissim Mannathukkaren

Come Indian elections, the bogey of Pakistan has overwhelmed the nationalist discourse in the shrillest manner, with the Prime Minister and other Ministers’ relentless branding of the Congress/Opposition as ‘anti-national’ and as ‘agents of Pakistan’. Further, the Prime Minister even made an unprecedented threat of using nuclear weapons against Pakistan.
As a country born of the two-nation theory based on religion, and then having to suffer dismemberment and the consequent damage to the very same religious identity, it is obvious why Islamic Pakistan must have a hostile Other in the form of a ‘Hindu India’. But what is not obvious is why India, a (much larger) secular nation, must have a hostile antagonist in the form of Pakistan.
It is widely recognised that the fulcrum of the Pakistani state and establishment is an anti-India ideology and an obsession with India. But what has scarcely received notice is that India’s post-Independence nationalism has been equally driven by an obsession with Pakistan. Of course, this obsession acquires a pathological dimension under regimes, like the present one, which thrive on hyper-nationalism and a ‘Hindu India’ identity.
But, this hyper-nationalistic urge to ‘defeat’ Pakistan and to gloat over every victory, both real and claimed, is ultimately self-defeating, and comes with huge human and material costs. Much of these costs are hidden by jingoism masquerading as nationalism.
Words often used regarding the Pakistani state’s actions, even by critical Pakistani voices, are ‘delusional’ and ‘suicidal’, and rightly so. For, no level-headed state would seek to attain military parity with a country that is six and half times larger in population, and eight and a half times bigger economically. HussainHaqqani, the Pakistani diplomat and scholar, compared it to “Belgium rivalling France or Germany”. Pakistan’s vastly disproportionate spending on the military has been self-destructive for a poor nation.
In 1990, Pakistan was ahead of India by three places in the Human Development Index. In 2017, Pakistan was behind India by 20 ranks, a sad reflection of its ruinous policies.
More critically, the Pakistani state’s sponsorship of Islamist terror groups has been nothing less than catastrophic. What the world, including India, does not recognise is that Pakistan, ironically, is also one of the worst victims of Islamist terrorism. In the period 2000-2019, 22,577 civilians and 7,080 security personnel were killed in terrorism-related violence in Pakistan (the number of civilian/security personnel deaths from Islamist terrorism in India, excluding Jammu and Kashmir, was 926 in during 2000-2018).
The fact that Pakistan has suffered much more than India in their mutual obsession cannot hide the equally serious losses that India has undergone and is willing to undergo in its supposedly muscular pursuit of a ‘no dialogue’ policy with Pakistan.
Wars and military competition produce madness. Nothing exemplifies this more than India-Pakistan attempts to secure the Siachen Glacier, the inhospitable and highest battle terrain in the world. India alone lost nearly 800 soldiers (until 2016) to weather-related causes only. Besides, it spends around ?6 crore every day in Siachen. Operation Parakram (2001-02), in which India mobilised for war with Pakistan, saw 798 soldier deaths and a cost of $3 billion. This is without fighting a war. Add to this the human and economic costs of fighting four wars.
Granted, the proponents of India’s muscular nationalism who want only a military solution in Kashmir might close their eyes to the killings of some 50,000 Kashmiri civilians and the unending suffering of Kashmiris, but can they, as nationalists, ignore, the deaths of around 6,500 security personnel in Kashmir and the gargantuan and un-estimated costs of stationing nearly 5 lakh military/para-military/police personnel in Kashmir for 30 years?
Ten years ago, Stephen P. Cohen, the prominent American scholar of South Asia, called the India-Pakistan relationship “toxic” and notably termed both, and not just Pakistan, as suffering from a “minority” or “small power” complex in which one is feeling constantly “threatened” and “encircled”. Tellingly, he argues that it is the disastrous conflict with Pakistan that has been one of the main reasons why India has been confined to South Asia, and prevented from becoming a global power.
Here, one should ask the most pertinent question: why does India compete with Pakistan in every sphere, from military to sport, rather than with, say, China, which is comparable in size and population, and which in 1980 had the same GDP as India? (China’s GDP is almost five times that of India’s now.)
Of course, emulating China need not mean emulating its internal authoritarianism or its almost colonial, external economic expansionism. On the contrary, it is to learn from China’s early success in universalising health care and education, providing basic income, and advancing human development, which as AmartyaSen has argued, is the basis of its economic miracle. It is precisely here that India has failed, and is continuing to fail.
Therefore, despite India being one of the fastest growing major economies in the world since 1991 (yet, only ranked 147 in per capita income in 2017), its social indicators in many areas, including health, education, child and women welfare, are abysmal in comparison with China’s. Worryingly, in the focus on one-upmanship with Pakistan, India’s pace in social indicator improvement has been less than some poorer economies too. The phenomenal strides made by Bangladesh in the social sector are an example.
Here, a look at the military expenditures is revealing: while India spent $63.9 billion (2017) and Pakistan $9.6 billion (2018-19), Bangladesh spent only $3.45 billion (2018-19). Only a muscular and masculine nationalism can take pride in things such as becoming the fifth largest military spender in the world, or being the world’s second largest arms importer. The bitter truth hidden in these details is that India, ranked 130 in the HDI (and Pakistan, 150), simply cannot afford to spend scarce resources on nuclear arsenals, maintaining huge armies or developing space weapons. Besides, in an increasingly globalised world, military resolution between a nuclear India and Pakistan is almost impossible.
The more India, the largest democracy in the world, defines itself as the Other of Pakistan, a nation practically governed by the military, the more it will become its mirror. Any nation that thrives by constructing a mythical external enemy must also construct mythical internal enemies. That is why the number of people labelled ‘anti-national’ is increasing in India. India has to rise to take its place in the world. That place is not being a global superpower, but being the greatest and most diverse democracy in the world. That can only happen if it can get rid of its obsession with Pakistan.
(The Hindu)

 
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Opinion

Symbol of New (Hindu) India?

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By Sanjeev Ahluwalia

BJP president Amit Shah is technically correct to say that SadhviPragya Thakur, one of the accused in the September 2008 Malegaon (Maharashtra) bomb blast case, who is on bail, has a right, under our liberal electoral laws, to contest the elections. It hardly matters that she voluntarily claimed being part of the Hindutava forces which had pulverised the Babri Masjid on December 6, 1992 and that an FIR has been registered against her by the Madhya Pradesh police on the orders of the Election Commission.
A galaxy of BJP leaders headed by Lal Krishna Advani, who went on to become deputy prime minister, and Hindutava firebrands Version 1 from the 1990s era — SadhviRithambra, VinayKatiar, Hari Vishnu Dalmia, et al — were criminally indicted for conspiracy but let off by a CBI special court in 2001. The Allahabad high court upheld the order of acquittal in 2010. But curiously, the Supreme Court directed that the case be revived in April 2017, under the NarendraModi government.
To be honest, there was little reason, back then, not to indict both Kalyan Singh, the BJP chief minister of Uttar Pradesh, and P.V. Narasimha Rao, the Congress Prime Minister. Culpability for dereliction of duty runs deep and inefficiencies in the judicial system help gaming transgressors.
Our laws consequently acknowledge this judicial gap and do not bar a candidate from political office, even though serious criminal charges have been drawn up in court against the person and a trial is under way.
But that does not fully explain why the BJP chose her. After all, Bhopal is not just any other seat. It is the capital of Madhya Pradesh and she has been pitted against Digvijay Singh, a former chief minister of the state and a senior Congress leader.
More to the point, isn’t she out of sync with the BJP government’s soothing signature tune of “Sabkasaath, sabkavikas” (with everyone, for everyone)? Does this signal a major change in stance and hitherto is revisionist social policy likely to overshadow the imperative for economic growth?
Pragya Thakur has no qualms about evoking her mystical powers to “damn” (curse) her opponents, demonstrating a conflation between her private well-being and that of all Hindus — a distinction which is necessary in those holding public office. But ascetics and mystics live by the code of “bhakti” — a submersive ecosystem, in which the followers are one with the guru. This leaves no space for the rule of earthly, common law.
Bhakts believe the spiritual power of an ascetic’s curse causes irreparable harm. Such pervasive, blind faith begs the question — should India have lawmakers who exult in evoking their spiritual powrs to shield themselves from the law?
Given these rough edges, what compelled the Modi-Shah team to field SadhviPragya from Bhopal? Two motivations suggest themselves.
First, electoral strength breeds hubris. Nominating Pragya Thakur sends the message that a new, assertively Hindu India is on its way and those with different views should make way.
Hinduism is resilient because it absorbs and subsumes other beliefs. Think Tamil Nadu 70 years ago. Anti-Brahmanism, rationalism and primacy for Tamil culture and language — versus Hindi — drove the atheist Dravida movement to its peak. Today, with political power firmly with the Tamil middle castes, ritualistic Hinduism is resurgent in Tamil Nadu.
Hinduism facilitates Sanskritisation — a religious version of the Stockholm syndrome, where the marginalised empathise with and seek to emulate their oppressors, thereby perpetuating the status quo.
Even the Congress Party has succumbed. The symbols of ritualistic Hinduism — special prayers at temples and endorsements from Hindu religious leaders — are the norm. This is canny, since Muslims and Christians have nowhere else to go, at the national level — though the BahujanSamaj Party and the Samajwadi Party in Uttar Pradesh; Trinamul Congress in West Bengal; TelanganaRashtraSamiti in Hyderabad, the Communists in Kerala and the AamAdmi Party in Delhi offer classically secular, regional alternatives.
An alternative driver behind Pragya Thakur’s nomination could be sheer desperation, in the absence of a NarendraModi wave, unlike 2014. After all, the party lost Madhya Pradesh along with two other cow belt states to the Congress only a few months ago during the state Assembly elections. Fielding the Sadhvi is sure to rake up Hindu resentment against the Congress for subscribing to a counter narrative of “Hindu terror” around the 2008 bomb blasts. The credibility of our police agencies has sunk so low that in the public’s perception, the “caged parrot” syndrome of ruling party capture, overrides the merits of any police action.
But multiple poll surveys, thus far, do not validate significant electoral loss for the BJP. The most recent endorsement comes from SurjitBhalla’s new book Citizen Raj: Indian Elections 1952-2019. He forecasts a simple majority of 274 for the BJP on its own. Lord Meghnad Desai, a British peer of Indian origin, also endorses a clear win.
NarendraModi is no one’s tool. Were he to succeed, his game would be to tame the tiger that he is riding. This is risky. But a more grounded strategy could well emerge, which seeks to rid Hinduism of its caste-based fractures; infuse the religion with modern concepts of universal human rights and worry more about generating income and wealth for all, rather than protecting India from without whilst dividing it from within.
The Modi-Shah duo’s dodgy electoral tactics are not new. Encouraging social divisiveness; kitchen cabinets to bypass government structures; centralisation of authority; a quasi-presidential form of campaigning and the systematic decimation of potential opponents — all these have all been used by other parties in the past. Banyan tree leadership is hardly unique to today’s BJP.
What is new is the blinding speed with which the Modi-Shah team has executed their strategy of building a “New India” — a narrative which promises to change social endowments and norms in ways that have never visualised previously. Status quoists will resist this seismic makeover. Beneficiaries will support it. Make up your mind, dear reader, where you belong.

 
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Opinion

‘The TINA trick’

The Kashmir Monitor

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By Anil Dharker

This state of despondency arises from many factors, the major one being the disappointment with the performance of NarendraModi’s government (bhakts always excepted).
Two abbreviations crop up in any conversation about the elections. Both give a dispiriting picture of the mood of the nation. The acronyms are NOTA and TINA, which as we all know, expand to None Of The Above and There Is No Alternative.
This state of despondency arises from many factors, the major one being the disappointment with the performance of NarendraModi’s government (bhakts always excepted). In 2014, there was a genuine Modi Wave caused by disillusionment with UPA’s drift and its alleged corruption; in direct contrast were Modi’s enticing promises of “development” and rooting out corruption and black money. The disasters of demonetisation and GST, rising unemployment and the unaddressed tragedy of agrarian distress has taken the sheen off Modi’s many promises.
NarendraModi knows; everyone in the BJP knows; thinking party supporters (bhakts always excepted) also know, that repeating the same promises again and again doesn’t fulfil them — action does — but implementation has either been negligible, or poor. This is why not one single speech of Modi talks of his government’s performance. It’s a strange thing to hear a prime minister going to the people for re-election without a word about five years of his government. Instead, he talks about his “muscular response” to Pakistan and he talks about Hindutva in a demagogic way reminiscent of Bal Thackeray, using words which a chief election commissioner like T N Seshan would have acted more strongly against.
Sadly, the EC is not the only institution the Modi government has eviscerated. If you really wanted to know what the BJP government has achieved in its five-year term, it’s this: Every institution, the Enforcement Directorate, CBI, the police in BJP-ruled states, the Income Tax department… name them, and they do the government’s bidding, even if many of their actions on the eve of elections are clearly political in nature and meant to influence the electorate.
This is where the TINA factor comes in. Even BJP supporters disillusioned with NarendraModi ask: If not Modi, who will be PM? Rahul Gandhi? Mamata Banerjee? Mayawati? They find all these options unacceptable. Unfortunately, people have short memories. Political turmoil brought in prime ministers as diverse as Morarji Desai, V P Singh, I K Gujral, Chandra Shekhar, DeveGowda and Charan Singh. Not all of them were a disaster. In any case, all of them were in the chair for just around a year each (except Desai, who had two years), far too short a time to judge a prime minister’s performance. More than that, it’s important to note the classic definition of a prime minister in a functioning democracy: He is the first among equals in the council of ministers. Would anyone in the present cabinet dare say that of NarendraModi? No wonder the BJP’s slogan for 2019 is “phirekbaar, Modisarkar”. And its manifesto is replete with photographs of Modi, significantly even on the cover. Apart from re-emphasising that Modi’s council of ministers consists of lightweights; the slogan underlines the fact that the BJP government is Modi, Modi and Modi. That’s how the TINA factor gets reinforced as part of the BJP’s planned campaign strategy.
Contrast that with the Congress’s slogan, “abhoga NYAY’, a play on the Hindi word to mean justice as well as highlight the party’s ambitious social welfare programme, with which it hopes to make an impact on the elections. It also removes any hint of a personality cult in the party, although clearly, Rahul Gandhi is the prime force in the election campaign. Perhaps, it’s also a tacit admission that the public perception of Rahul Gandhi as an unsuitable candidate for prime ministership hasn’t changed, although the man himself has grown impressively into a leadership role. But you need an open mind to notice that, and an open mind doesn’t seem to be a common attribute of our electorate, especially its urban component. The more educated you are, the more you are likely to hold on to your prejudices.
An interesting point to note is that even Indira Gandhi, a towering personality if ever there was one, used the slogan “garibihatao”, and not a personality-centric one. But that concealed the fact that she ruled her government and her party with an iron fist. Another interesting point to note is that in his constant attacks on “The Family” and “Dynasty”, Modi hasn’t said a word against Indira Gandhi. For all his visceral hatred of the Nehru-Gandhis, Modi is strangely silent about Indira: There’s obviously an unspoken and sneaking admiration there. When you think about it, it’s really not surprising. Indira Gandhi was the government, and no one else mattered. NarendraModi is the government, and he has made sure no one else matters. For all those enamoured of strong leadership, it might be salutary to remember its perils: Mrs Gandhi imposed the Emergency, she nationalised banks (a disaster in the long run), she abolished privy purses (a constitutional guarantee), she subverted most of our institutions, including even the judiciary, and she used departments like Income Tax to get even with political opponents. Aren’t the parallels uncanny? On the other hand, low-key, self-effacing personalities like LalBahadurShastri and Narasimha Rao made excellent prime ministers; in fact, the former had he not died so tragically early, may have lived to be our best PM ever.
NOTA, of course, is an expression of dissatisfaction with the whole political process, and who can blame people when we see the way our electioneering has been conducted, with its abuse and personal invective? But NOTA is not an option; the option really is this: Better not the devil we know than the devil we don’t, because the latter may turn out to be not a devil at all.

 
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