On Wednesday, the Supreme Court rejected the Centre’s objections and allowed the documents in the review petitions

Dissent note of three members of Indian Negotiating Team of June 1, 2016: It records objections of three members of the Indian Negotiating Team on various aspects of the deal. This note, which detailed ten objections, was appended to the final report of the Indian Negotiating Team. 

Petitioners seeking a review of the Supreme Court’s December 2018 ruling in the Rafale deal matter relied upon three documents to which the Centre had objected, claiming it had privilege over these documents and that these had been illegally obtained.

These are the three documents:

* A Ministry of Defence note initiated on November 24, 2015 flagged the PMO’s discussions to then Defence Minister, Manohar Parrikar. In the note, Defence Secretary G Mohan Kumar wrote: “RM may pl see. It is desirable that such discussions be avoided by the PMO as it undermines our negotiating position seriously.” RM was a reference to Raksha Mantri.

Kumar was responding to a note by Deputy Secretary (Air-II) S K Sharma, who wrote: “We may advise PMO that any Officers who are not part of Indian Negotiating Team may refrain from having parallel parlays (parleys) with the officers of French Government. In case the PMO is not confident about the outcome of negotiations being carried out by the MoD, a revised modality of negotiations to be led by PMO at appropriate level may be adopted in the case.”

Explained

Round 1 to petitioners

The decks have been cleared for hearing petitions seeking a review of the Supreme Court’s December 2018 order in the Rafale matter. The judges have underlined “test of admissibility of evidence lies in its relevancy” and “unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out”.

To these concerns of the MoD, Parrikar wrote: “It appears that PMO and French president’s office are monitoring the progress of the issue which was an outcome of the summit meeting. Para 5 appears to be an over reaction. Def Sec may resolve issue/matter in consultations with Pr. Sec to P.M.” Para 5 was a reference to Sharma’s note.

* Note 18 of MoD, August 2016: It records NSA Ajit Doval’s meetings with the French side in Paris on January 12-13, 2016. The note, prepared by the Air Wing of the MoD, records that Parrikar, on the basis of Doval’s negotiations outside the ambit of the negotiating team, directed that recommendation on waivers in clauses for Sovereign Guarantee and Arbitration be placed for consideration of the Cabinet Committee on Security instead of the Defence Acquisition Council which is the Competent Authority.

* Dissent note of three members of Indian Negotiating Team of June 1, 2016: It records objections of three members of the Indian Negotiating Team on various aspects of the deal. This note, which detailed ten objections, was appended to the final report of the Indian Negotiating Team.

Meanwhile, the Ministry of Defence, in a statement Wednesday on the Supreme Court order, said “the Hon’ble Court has decided to look into the documents also while deciding the Review Petitions” but “it is reiterated that the petitioners are using documents with the intention to present a selective and incomplete picture of internal secret deliberations on a matter relating to National Security and Defence. The documents presented by the petitioners are failing to bring out how the issues were addressed and resolved and necessary approvals of the competent authorities taken. These are selective and incomplete presentation of the facts and records by the petitioners”.

“The Government had provided the requisite information as desired by the Hon’ble Supreme Court to the Court and also to the petitioners as per directions of the Court and in the manner prescribed by the Court. The Government also provided all records and files as required by CAG. The main concern of the Government is relating to availability of sensitive and classified information concerning National Security in the public domain,” it stated.