Bharat Bhushan - Rafale deal row: Why procedure should be seen as no less crucial than price
Why procedure should be seen as no less crucial than price Both CAG and Parliament should closely examine the processes of decision-making; should they fail in this regard, it would be open to public-spirited citizens to file a petition in the courts
The Rafale fighter
jet deal controversy is unlikely to die down in the run up to the general
elections. The Opposition has already questioned the price of the deal and the
secrecy clause, and made charges of crony capitalism. There is an oblique
suggestion of kickbacks involved. Normally such
allegations would be par for the course in any lively democracy. So would the
privilege motion moved in the Lok Sabha by the Congress party against the Prime
Minister and the Minister for Defence. However, the defence minister’s
over-the-top reaction during the no-confidence debate prompted several
observers to wonder whether “the lady doth protest too much”.
Despite the furore
over the past two weeks, several significant issues of procedure need to be
addressed in public and in Parliament. The first question to
ask for such a large deal would be: When did the Cabinet Committee on Security (CCS) clear it? It is
the CCS which deals with capital expenditure of more than Rs 10 billion in
defence-related purchases and projects. At 7.87 billion euros (over Rs 580
billion), this deal was valued several times over that limit. A Cabinet note
would have been moved for clearance by the CCS and the Cabinet.
The government must
clarify when this was done and whether the CCS decision was taken before the
Prime Minister announced the deal in Paris on April 10, 2015. It might be argued
that an earlier Cabinet sanction was already operative since India and France
had been in negotiations for three years for the purchase of 126 Rafale fighter
jets. However, the earlier deal for 126 aircraft was valued at Rs 7.15 billion
per aircraft. On the other hand, the 36 Rafale aircraft
bought by the Modi government were valued at Rs 16 billion per aircraft. The
newly purchased aircraft are said to include elements not available in the
earlier ones. Under these circumstances, it is open to question whether the
purchase can be judged as price escalation or as a new deal altogether. In case of price
escalation, the government’s “Transaction of Business Rules” (TBR) say that if escalation
is more than 20 per cent, then the new capital expenditure proposal has to go
back to the CCS for approval. Was this approval sought and given before April
10, 2015? The French defence
ministry, for its part, told Reuters that this was a new deal.
For clearance as a new
deal it should have gone to the CCS based on a proposal mooted by the defence
ministry after Inter-ministerial consultation. This would mean consulting the
finance ministry for the financial outgo and perhaps other ministries such as
the Ministry of External Affairs. After consultations, the Cabinet Note would
have been moved by the then defence secretary through the then Cabinet
secretary. This is the laid out procedure. The Modi government
should reveal the timeline of these steps to show that due procedure was
followed.
The government,
however, can also follow an alternative procedure. Let us assume that there was
no prior approval of the CCS and that it was decided on the eve of the prime
minister’s departure to France that the purchase of 36 Rafale fighter jets was
the high-profile deliverable which would make the visit a success. In that
case, after having announced the deal from Paris, a retrospective CCS and
Cabinet approval would have been sought. In this scenario, Rule
12 of the TBR would have to be invoked for the “impulse buying” of the jets and
seek the Cabinet’s approval ex post facto. Rule 12 allows that, “The Prime
Minister may, in any case or classes of cases permit or condone a departure
from these rules, to the extent he deems necessary.”
Since Rule 12 modifies
the normal process of examination and inter-ministerial consultation, it is
invoked by Prime Ministers only under situations of extreme urgency or
unforeseen contingency, such as war. In this scenario, the proposal by the
defence ministry should have given the justification for the urgency and listed
the exceptional circumstances prevailing. The approval of the defence
minister, Manohar
Parrikar at the time, would be needed before sending the retrospective
clearance proposal to the Cabinet.
Clearly, any
circumvention of the TBR is permissible only when a reasoned argument for
bypassing the Rules is put on record. The government should be prepared to
justify its action in Parliament and share it with its auditors. The TBR
follows from Article 77 (3) of the Constitution of India. Even a Prime Minister
must record on file why he took a decision circumventing the Rules and if
seeking ex-post facto Cabinet approval, the department concerned must justify
the urgent and exceptional circumstances necessitating the circumvention of
established procedure.
If indeed Prime Minister Modi bypassed the collective
decision-making process, are his reasons on record? It would be
interesting to know how far the PM overstepped into areas of decision making
that are the provenance of the defence
minister. Under the “Allocation of Business Rules” of the government,
“procurement exclusive to the Defence services” comes under the sole remit of
the defence ministry. Some press reports
which appeared at the time suggested that the Rafale decision came as a surprise to Defence Minister Parrikar. He was
apparently on his way to the airport to take flight to Goa when he was called
to the Prime Minister’s Office and informed of the purchase decision by the
Prime Minister.
It must also be
appreciated that government-to-government deals are not necessarily better than
open commercial deals. Soviet-era defence deals and even those with Russia are
examples of opaque government-to-government deals where rent seekers can have a
field day. They allow the actors to hide behind secrecy clauses, lack
transparency and confound the process of accountability.
Both the Comptroller
and Auditor General (CAG) and Parliament should closely examine these processes
of decision-making. They are no less important than the price of the jet
fighters or the charges of crony capitalism. Should they fail in this regard,
it would be open to public spirited citizens to file a petition in the courts.
https://www.business-standard. com/article/opinion/rafale- deal-row-why-procedure-should- be-seen-as-no-less-crucial- than-price-118073000181_1.html