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Rafale Deal – Analysis of Petitions in the Supreme Court

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Rafale Review Petition Analysis

Shimla-A three judge bench of the Supreme Court unanimously has ruled as admissible the ‘secret’ documents, containing file notes of the Defence Ministry, that had been annexed to the review petition that was filed in the case relating to the purchase of the Rafale aircraft.

The documents were released by the newspaper ‘Hindu’ and state took an objection in the Supreme Court that such documents may not be allowed , however the Hon’ble court rejected the contention of the Government and stated that admissibility of the secret documents, including a claim of privilege under Section 123 of the Evidence Act which was misplaced.


Further, the Hon’ble Chief Justice in his Judgement with respect to publication of the documents in ‘The Hindu’ newspaper, reminded us of the consistent views of the Supreme Court in upholding the freedom of the press in a long line of decisions commencing from Romesh Thapar vs. State of Madras and Brij Bhushan vs. The State of Delhi.

This means that these documents will now be treated like any other document for admission and the court will have the power to look into them. The review petition will now be heard on merits.

What does this petition alleges and what will the Hon’ble Supreme Court now be adjudicating upon;

The procedure for purchasing defence equipment is elaborately laid down in a Defence Procurement Procedure document which has been amended from time to time. However broadly from 2001 till date, the PROCEDURES in place provide the following:

  1. The Services Head Quarters have to give their requirements for the quality and quantity of the equipment that they need. This is called the Services Qualitative Requirement (SQR)
  2. Thereafter the matter goes to a larger body called the Categorisation Committee which then decides whether the equipment could purchased/ made domestically or would have to be purchased from abroad or a combination of the two.
  3. Thereafter an even higher body called the Defence Acquisition Council (DAC) approves the quantity, quality and whether the equipment should be purchased/made domestically or purchased from abroad or a combination of the two. The DAC gives it’s approval called the Acceptance of Necessity.

It is only then that tenders are issued.

Facts

In 2007, after going through the above procedure tenders were issued by the Ministry of Defence for the purchase of 126 fighter aircrafts and it was specified in the Request for Proposal that 18 of these aircrafts would be purchased from abroad in a ‘fly-away’ condition and the remaining 108 would be manufactured in India in the factory of Hindustan Aeronautics Limited (HAL) with transfer of technology from the foreign vendor. Six companies had applied and after extensive trials by the Air Force two were short listed. After that the financial bids were opened and Dassault Company manufacturing the Rafale aircraft was declared the lowest tenderer and thereafter price negotiations began. These negotiations were at a very advanced stage (95% complete) by 25th march 2015.

Allegation

However within 15 days of this, the Prime Minister of India and the President of France announced a totally new deal jettisoning the virtually complete 126 aircraft deal and the Prime Minister on behalf of India agreed to purchase only 36 Rafale Aircrafts in a ‘fly-away’ condition without any transfer of technology and make in India. It later turned out that the new deal involved 50% of the value of the contract to be given as “offset contracts” to Indian companies and that the government informally told Dassault and the French government that the bulk of the offset contracts would have to be given to a company of Mr. Anil Ambani which had just been set up. When the final contract was signed after price negotiations, it transpired that the price of the aircraft had been increased to more than double to what was under consideration in the old deal of 126 aircrafts.

The Petitioners tried to file an FIR which was not registered by CBI. Ultimately, the petitioners filed the writ petition feeling aggrieved by this non-registration of FIR by the Central Bureau of Investigation (CBI) on a written complaint that was made to the CBI on the 4th of October, 2018 in relation to above-mentioned facts.

The Offences

According to the petition Offences under S. 7 and S. 13 of the Prevention of Corruption Act are made out, these have been elaborated below;

  • That high ranking public servants, unilaterally, in violation of all mandatory procedures, without obtaining any SQRs from the IAF, or any decision of the Categorisation Committee or any Acceptance of Necessity from the Defence Acquisition Council, entered into a Memorandum of Understanding with the French regarding purchase of just 36 Rafale aircrafts, all in a ‘fly away’ condition with no Transfer of Technology and no Make in India.
  • That they did so after virtually scrapping the earlier procurement process for 126 aircrafts, which had followed all due procedures, and was in accordance with the specifications of the Indian Air Force. In the process, all important strategic objectives of the earlier procurement procedure that were on the basis of institutions authorised to do so, were eschewed. Consequently, just 36 aircrafts were arbitrarily purchased, with no make in India and no Transfer of Technology against the determination of IAF Services Head Quarters, the Categorisation Committee and the Defence Acquisition Council.
  • That under the earlier deal, HAL was to be the production agent for Dassault in India and there was no scope for Mr. Ambani to be a offset partner.
  • That this act of unilaterally changing the deal by bypassing all laid down procedures, was to ensure that Mr. Ambani could be brought in as an offset partner for the purpose of obtaining for him offsets worth thousands of crores.
  • That the French government as well as the Dassault Aviation company were told that this contract of 36 ‘ready to fly’ aircraft will be only given to Dassault Aviation, if they gave the major part of the offset contracts in this deal to Mr. Anil Ambani’s company.
  • That Mr. Anil Ambani’s recently incorporated company had no credibility or even eligibility to be an offset partner for Dassault. That therefore, the thousands of crores to be received by RAL through the offset contract are substantially in the nature of commissions.
  • That the price of the aircrafts in the new deal has been increased from approximately 700 crores per aircraft to over 1600 crores per aircraft without any legitimate public interest.
  • That the facts mentioned above show two things; (a) that Indian public servants asked Dassault to give the major offset contracts in this deal to Anil Ambani’s defence company as a condition for getting the contract; & (b) that the offset contracts worth tens of thousands of crores which have been awarded to Reliance are not and cannot be considered to be legal remuneration for services actually rendered or services which could credibly be rendered by Reliance Aerostructure Limited.
  • Therefore, these offset contracts and the payments made/to be made for them are at least in large part in the nature of undue advantage/illegal gratification/commissions to be paid to the Reliance under this deal. It is clear therefore that public servants in India have abused their positions to give an undue advantage to Anil Ambani’s Reliance company as a consideration for the discharge of his function as a public servant to award the contract of purchasing 36 Rafale jets from Dassault in a ‘fly away’ condition.

The Supreme Court can now order a CBI investigation if it finds merit in the claims of the petitioners.

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Kullu Bus Accident: Death Toll Reaches 44, About 35 Injured, Several Critical

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Deaths in Kullu Bus Accident in 2019


SKullu-
The bus accident in Banjar sub-division of Kullu district has entered the list of biggest tragedies in Himachal Pradesh. Per the last information received, the death toll has reached 44, and over 30 injured are undergoing treatment at Banjar Civil Hospital, Kullu Hospital, and Hosptial in Mandi’s Nerchowk.

Several injured are in critical condition and have been referred to PGI, Chandigarh. The district administration fears a possible rise in the death toll considering the critical condition of the injured.

All deceased are said to hail from about 20 villages in Kullu and Mandi.

The accident has again exposed the State government’s hollow promises to take measures to reduce road accidents. There is still no check on vehicle maintenance and overloading, leave alone appropriately placing crash barriers on cliff-side of the roads.
Causes of Kullu Bus Accident in 2019

This 42-seater bus was carrying over 75 passengers, there were passengers on the roof as well, eye-witnesses confirm. The bus had left for Gada Gushaini from Banjar on Thursday evening at about 3:45 PM. The bus had not covered more than two kms when it plunged into a 500 feet deep gorge near ‘Bheot mod’ and landed in a Khada fter scraping the mountain face.
Banjar Bus Accident in Pictures

As per a Hindi Daily, the driver was untrained and was perhaps driving a bus for the first time.

Locals, who travelled in this bus daily, told another Hindi Daily that the bus was in poor condition and often developed technical snags. According to the Daily, the driver experienced a problem in shifting gears when the bus approached the ‘Bheot mod’ and began to move backwards uncontrolled before skidding off the road.

The Superintendent of Police, Kullu, Shalini Agnihotri said, the exact cause of the accident could only be ascertained after a proper probe.

Chief Minister Jairam Thakur, who visited the hospital to meet the injured said,

The road at the spot was not in bad condition. Prima facie it looks like a case of overloading. A meeting was held today to ensure that such incidents don’t happen in future

The driver is reported to have jumped off the bus. A Daily said the driver survived and fled the spot. However, official confirmation was awaited. Hearing the sound of the accident, the locals from nearby Bhumar village rushed to the spot. As per eyewitnesses, the bodies were scattered all over the steep mountain.

Moreover, the condition of crash-barriers install was quite poor. The single-row crash barriers were not installed properly and held no chance of stopping the bus from skidding off the road.

Pictures of Kullu Bus Accident in 2019
The bus was shredded into pieces and its parts were mangled all over the hill and the stream at the bottom of the gorge. The locals had a tough-time descending the steep hill. With the help of ropes, the bodies and injured were extricated and brought up to the road. Further, the locals formed human chains to carry the injured across gushing water of the stream.

Death toll in kullu bus accident

The accident is not the first of its kind. There have been several such accidents in the past in Himachal Pradesh. On April 9, 2018, 27 people including 24 children were killed in a school bus accident in Nurpur in Kangra district. In April 2017, 45 people had died when an overloaded bus had plunged into a gorge near Nerwa in Shimla district. In 2016, 17 had died when a bus fell into Beas river in Mandi district, 25 in Rampur in 2017, 31 in July 2015 when a bus fell into the Parvati in Kullu. Before that, May 2013, 42 people were killed as a private bus plunged into Beas river.

In 2019 alone, 430 people have died in 1,168 road accidents in Himachal Pradesh by May 31. Between 2009 and 2018, over 11,000 people had died in nearly 31,000 different road accidents in the state.

Every time an accident happens, probes are ordered and government issues statements taking vows to fix black spots and implement violation of traffic rules like overloading and rash driving strictly. Further, assurances are provided to take strict action against all government officials and those responsible for the accident. After a few months, the usual business continues as the government officials go back into deep slumber. No action is ever taken against government officials responsible for negligence.

It’s no different this time too, the chief minister has ordered a Magisterial probe while the state transport minister Govind Singh Thakur has made similar promises. How and what actions will be taken remains to be seen.

It’s seen over the year that no audits are conducted to assess the need for additional bus services. The rural areas face a huge problem due to the lack of sufficient bus services, which is also responsible for overloading. There are limited buses and people are left with no choice but to board on overloaded buses to reach their destinations.

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The Regional Transport Office also has a role in such accidents because poorly maintained buses are passed easily. The Public Works Department has all the time to build a corrupt nexus with private contractors, but not to care to install much-needed crash barriers. The district administration and police hardly find time to run regular inspections to see if there is a paucity of bus services or buses are being overloaded.

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Campus Watch

Want to Participate in Sports Tournament? Pay Rs 3700: Shimla’s Private School to Students

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Auckland School Shimla making student to pay for sports tournament

Shimla-The Auckland House School, Shimla, had charged Rs. 4200 per student for a three-day picnic tour to Sadhupul organized about 10 days ago. Now, for a sports tournament in Palampur of Kangra district, the school is asking the students representing it to pay Rs 3700. It sounds absolutely absurd that instead of taking responsibility for the expenditure of the students representing it in the sports tournament, the school is asking students to pay a heavy fee for it. The school is already charging hefty annual fees from the students, but still asking for more. This is nothing more than a new way to extort money from parents. All of these allegations were labelled by the Student-Parent Association on Wednesday.

The school, however, defended itself by saying that participation in these events is not mandatory and parents are not forced in any way. Only those students who opt to participate would have to pay the said fees.

As per the parents, a sports tournament of missionary schools is being organized under the banner of Diocese of Amritsar from June 13 to 16 in Palampur. However, instead of incurring the expenditure for sending students to participate in it, the school is charging Rs 3700 from the students.

The parents alleged that to pressurize the parents, the school sends consent letters to parents just a couple of days before these events. The students are exposed to mental pressure and parents are compelled to sign these consent letters at the last moment. The other private institutions are also following the same pattern.

The parents alleged that the school is not refraining from looting students despite notifications and guidelines issued by the Directorate of Higher Education respectively on March 18, April 8, and May 4. The Association has demanded that the Director of Higher Education should take appropriate action to check this unjustified action of charging hefty amounts on the names of various events.

It’s pertinent to mention that the Association has been staging protests for the last four months against hefty, unjustified fees. They have been alleging that these schools have taken a form of mafia and has turned education into a purely profit-making business. Their protests had compelled the Directorate to issue guidelines to private schools to cut unjustified charges from fees. The Directorate had also ordered an inspection of all private schools running in all districts of the state. It was assured that necessary action would be taken after the completion of the inspection. However, no action was taken following the inspections. The Association had even alleged that schools didn’t even cooperate in inspection and did not provide details they were asked to submit by the Directorate. Moreover, the Directorate did not make findings of the inspection report public.

Some parents had also alleged that their children were made to go through mental harassment by school teachers. The children of those parents who were participating or supporting the protest were targeted individually, made to stand in class, and embarrassed.

However, the government did not intervene in any manner and let the schools enjoy all the liberties they wanted to.

The parents have again demanded that the government should form a regulatory body to check the financial exploitation of the parents by private schools. The Association has warned the government of more fierce protests in case it fails to meet the demands.

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Environment

Hydropower Projects in Himachal Not ‘Eco-Friendly, Govt Keeps People in Dark Through Biased Environment Impact Assessment Reports

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Himachal's Hydropower Projects Are not eco-friendly

Shimla- The Himachal Pradesh Government, as witnessed on several occasions, favours hydropower companies over the environmental impacts and affected people. It believes that these projects would boost the economic growth of the state and that there are hardly any environmental hazards linked to the construction of excess hydropower projects. There is a long list of pending projects that the government wants to get constructed.

In its environmental assessment reports,  the government preach that hydropower is eco-friendly. However, as a bitter reality, it does not appear to be true. There are severe environmental hazards linked to the construction of these projects, which the government is not ready to admit. As a result of this deliberate neglection, the villagers, rivers, local water sources, farming lands, local wildlife etc. are suffering. Houses of people were destroyed due to seepage of water from tunnels of hydropower projects and they are forced to evacuate. Let’s take a look at a new report compiled by an environmental group explaining why hydropower projects in the Himalayas are not eco-friendly.  

In the month of the ‘World Environment Day’, Himdhara Environment Research and Action Collective released their report titled “The Hidden Cost of Hydropower” to highlight the risks associated with hydropower construction, especially in Himalayan regions like Himachal Pradesh.  Over the last few years, increasing evidence has emerged that hydropower production may not be so ‘clean and green’ after all. This document compiles primary and secondary pieces of evidence of the impacts triggered by underground construction for the run of the river (ROR) hydropower projects highlighting the issues of environmental hazards and risks involved.

Echoing the fragility of the Himalayan region due to geological instability and climate change-related disasters like flash floods and cloud bursts, the report highlights the role of construction activities that accentuate this fragility.

 “A report of the state’s own disaster management cell says that around 10 Mega hydropower stations are located in the medium and high-risk landslide area,”

states the document.

  The report explains that the magnitude of the underground component of the civil work in hydropower projects involving blasting and dynamiting exacerbate existing vulnerabilities. These impacts are yet to be adequately studied and understood.

Visuals and testimonies of affected people from project sites in Kinnaur, Kullu and Chamba falling in the Satluj, Beas and Ravi basin collected over the years have been used to show the impacts. Case studies like that of the Parbati II, Karccham Wangtoo, Kashang and Bajoli Holi projects illustrate how landslides, drying up of springs, damages to houses, farms and forests have made difficult the lives and livelihoods of the people in the project area.

Landslide in Jhakri village of shimla due to hydropower project

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The report finds that the existing studies available on these impacts are inadequate or biased in favour of the hydropower producers, with economics as the main concern. Environment Impact Assessment reports of hydro-power projects gloss over the geological & seismic vulnerability of the project sites, with an explanation that the ‘hurdles’, ‘surprises’ and ‘incompetencies’ of the mountain geology would be handled at a later stage, if and when they occur. ‘Scientific’ linkages become difficult to establish later, and during EIAs, the concentration is to only rush through the studies to get ‘clearances’.

“They say there is no scientific evidence that the landslides are because of project activities and so we cannot claim compensation in case of cracks in the houses or damage to fields”,

according to Ramanand Negi of Urni Village located in the affected area of the Karchham Wangtoo project and now sitting on a huge landslide. 

The report also refers to the Audit reports of the Comptroller Auditor General to show how the costs of these ‘surprises’ are borne by the affected people or transferred to the public exchequer. The costs that producers have been forced to bear have led to financial losses, bad loans, and cumulatively a slump in the hydropower sector over the last few years. 

According to the report,

“The contribution of hydropower sector today to the country’s total electricity production has halved from 25% to 13% in the last decade. Where this state of hydropower industries was an opportunity to review hydropower policy and the sector’s viability, the report of Parliamentary standing committee on energy that reviewed the performance of hydro projects in 2018 turned a blind eye to environmental impacts and safety norms”.

 

Based on the committee’s recommendations the Ministry of Power issued an order in March 2019 recognizing hydropower projects with a capacity of more than 25 MW as ‘renewable’ source of energy, thus eligible for further subsidies. Himdhara’s report, however, brings out that hydro projects do not deserve the ‘green’ tag and the government should stop further subsiding the sector, especially large projects.

Water Sources drying due to hydropower projects

Water sources drying in himachal due to hydro projects

 

The report also identifies the institutional failures of the Central Water Commission, the Central Electricity Authority that are supposed to assess the Detailed Project Reports and give techno-economic clearances, monitor the progress, and reasons for the delay in projects.

This list also includes the Ministry of Environment that has blindly granted environment and forest clearances overlooking the above impacts and non-compliance; the State Directorate of Energy and State Disaster Management Authority, who have failed to fulfil their regulatory roles and ensure that there is no negligence.

The environmental group demanded that an independent scientific review of the immediate or long-term implications of construction work for hydropower development in the Himalayas should be commissioned. Citizens’ engagement, public consent mechanisms need to be strengthened, and a grievance redressal process needs to be put in place.

 

Loos of wildlife in himachal due to hydropower projects

 

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