Enjoy Constitutional Immunity Including Pranab Mukherjee

The UPA government’s factsheet on the AgustaWestland helicopter deal can bring embarrassment for the Congress as it categorically states that the tender was finalised in 2005 – a time when President Pranab was the defence minister, Air Chief Marshal SP Tyagi was India Air Force Chief, Wanchoo headed the SPG while Narayanan was the National Security Advisor.

But the CBI seeking to question President Pranab and the two governors seems highly unlikely as they enjoy Constitutional immunity. Apart from the President, two other key decision makers continue to enjoy high office. Wanchoo is now the Governor of Goa while Narayanan is the Governor of West Bengal. Both of them by virtue of being governors enjoy immunity under the Constitution.

Constitutional expert and senior lawyer Prashant Bhushan, however, said that while the three have immunity, they can be questioned. “The President can’t be prosecuted while he is in office but he can be questioned and the whole matter can be investigated,” Bhushan said.
Meanwhile, Congress MP Sandeep Dikshit said the need for questioning will arise only after an investigation report is out. “The then Defence Minister Pranab Mukherjee holds a Constitutional position. The need for questioning arises only after the probe report is out,” Dikshit said.

The Congress in its factsheet has also put the blame on NDA. The Congress has alleged that in 2003, the then National Security Advisor Brajesh Mishra wrote to the then defence secretary that the existing rules were unfair as it allowed only single bidding and that the qualifying height of the choppers should be reduced from 18,000 feet to at least 14,000 feet.

The factsheet says in the initial tender, only Eurocopter was found eligible. In 2003,Brajesh Mishra met the then Prime Minister Atal Bihari Vajpayee, urging him to change the norms to include more bidders. Altitude requirements were brought down from 6,000 to 4,500 metres after that meeting.

Later Brajesh Mishra wrote to the Air Chief Marshal suggesting consultations with the defence secretary. After the UPA came to power, the factsheet says IAF, SPG, NSA and Defence Ministry held consultations and changes in requirements were incorporated.

After the new tender, three companies responded, out of which AgustaWestland was selected. The Cabinet Committee on Security cleared the deal on January 18, 2010.

Surprisingly BJP leader Jaswant Singh, a member of the then Vajpayee cabinet, seemed to be endorseBrajesh Mishra’s act. But an alarmed BJP, which wants to take on the Congress in the Budget Session, was quick to distance itself from Jaswant Singh’s comments.



Under attack from the opposition over the controversial VVIP chopper deal, Prime Minister Manmohan Singh on Monday he was ready to discuss the issue in Parliament during the Budget Session beginning Thursday.Parliament has been debating on so many scams without any result so far. It is time for the result as the scam involve the president of India and the first family. Without the impeachment, without breaking the presidential immunity obstruction created by the UPA government, the defence line of the scam may not be broken. The opposition and others outside the government should come together rather to use the UPA ploy.The Budget Session of Parliament begins on Thursday.The BJP has accused the government of a “cover up” in the alleged scam in the purchase of 12 choppers from AgustaWestland at a cost of Rs. 3,546 crore.It has also claimed that the government had kept Parliament in the dark over the internal probe being carried out by the Defence Ministry on the issue.The Left parties have demanded cancellation of the contract with AgustaWestland, which has already delivered three of the 12 choppers.But it is not enough, any defence of the president is bound to kill impartial investigation.

“We can always sit down. There is scope for discussion. Parliament is a forum for discussion. We are ready to discuss all issues,” Dr. Singh said when asked about the Opposition threat to stall Parliament on VVIP chopper “scam”.

The Prime Minister was talking to reporters on the sidelines of a function in Rashtrapati Bhawan to confer the Indira Gandhi Prize for Peace, Disarmament and Development on noted social worker Ela Bhatt.

The chopper scam surfaced following the arrest of Giuseppe Orsi, the CEO of Finmeccanica, the parent company of AgustaWestland, by Italian authorities on charges of overseeing payments of bribes to help the company’s helicopter division win a contract in India.

No probe would help justice done, until all processes of further dealing in defence and internal security stopped with immediate effect.British Prime Minister David Cameron or any other dignity from outside may not help Indian democracy as they happen to be interested, biased  parties to ensure space in Indian weapon market boom boom.Cameron is accompanied by a large delegation which includes CEO of top British corporates, Vice-Chancellors of reputed universities and senior Government officials, among others.Besides the defence deal, other major issues expected to figure during Cameron's visit would include the Rs 12,000-crore Vodafone tax matter and the UK hosting a meeting between the Pakistan and Afghanistan Presidents.In Delhi, Cameron will hold comprehensive talks with Prime Minister Manmohan Singh on a wide range of bilateral, regional and international issues.

British Prime Minister David Cameron arrived here this morning on a three-day India visit during which will he meet captains of industry and hold talks with top leaders who are likely to seek more information on the VVIP helicopters scam involving an Anglo-Italian firm.Cameron is likely to be pressed for more information on the Rs 3,600 crore helicopter scam involving AgustaWestland during his meetings with the leadership tomorrow. The helicopters, three of which have already been delivered, were manufactured in southwest England.The visit also comes in the wake of India taking steps to scrap the contract after Italian investigators probed allegations that aerospace group Finmeccanica, the parent company of AgustaWestland, had broken the law by paying bribes to foreign officials.

The fact-sheet said that the first Request for Proposal was issued in March 2002 mandating a requirement of 6,000 metre (18,000 feet) flying altitude for selection of the chopper.It notes that the mandatory technical requirements of the chopper were changed in the tender during the Vajpayee government in 2003, with the then National Security Adviser Brajesh Mishra playing a key role.

This requirement made it clear that AgustaWestland could not participate in the deal.

However, in a meeting convened by the Principal Secretary to PM on November 19, 2003, the prinicipal secretary “observed that his main concern was that the framing of the mandatory requirements has led us effectively into a single vendor situation.”

The Defence Ministry fact-sheet states that in a meeting convened by the then NSA, it was also noted that the President and the Prime Minister have rarely made visits to places involving flying at an altitude beyond 4500 metres and therefore it was decided to make the mandatory requirement for operational altitude 4500 meters.

“The higher flying ceiling of 6000 meters, and a cabinet height of 1.8 meters could be made desirable operational requirements,” it said.

The then NSA also suggested that the then IAF Chief ACM S Krishnaswamy and Defence Secretary may jointly review the matter to draw up realistic mandatory requirements satisfying operational, security and convenience requirements of VVIPs and also set in motion a fast track process for selection and acquisition of the replacement helicopters.

“In pursuance of the above directive, the Operational Requirements (ORs) were deliberated at length between IAF, NSA, SPG/PMO and Defence Ministry between March, 2005 to September, 2006 and the above indicated changes were incorporated,” the Ministry fact-sheet stated.




Even as trial proceedings begin against Finmeccanica CEO Guiseppe Orsi in Milan and the Italian court refusing to share probe details with India, a long drawn and tough legal battle appears to be on the cards.The Hindu reports.

As a joint team of the CBI, Ministry of Defence and External Affairs is scheduled to arrive in Italy on Tuesday, it would be a hard task for them to mount efforts to find out the beneficiaries from India of the alleged kickbacks in the Rs. 3,600 crore VVIP chopper deal that was inked with AgustaWestland, a subsidiary of Finmeccanica, in February 2010.

In the absence of details coming out of judicial channels in Italy into the hands of the Indian investigators, they can scrutinise minutely the probe report of the Italian investigators who have conducted their probe over the past one year into the activities of Finmeccanica, suspected of involvement in international corruption to bag deals not only in India but in other countries as well.

The 64-page report shows in detail how money was given on a monthly basis using front companies like IDS Tunisia in which IDS Infotech had made investments. From February 2010 to December 2010, nearly €510,000 were transferred every month under the garb of what seems like bogus software exports. The route was used by the intermediaries or middlemen of Finmeccanica. The IDS connection is the common thread through the trail of kickbacks though it is not clearly shown who are running the firm.

The report gives details of payments made in the period of five years between 2007 and 2012, saying several million euros was paid by AgustaWestland into IDS Tunisia and the money was routed through Tunisia to IDS India against fake bills raised for development of software.

Aeromatrix also figures in the taped conversations of suspects in Italy. Among its directors were Swiss residents Guido Ralph Haschke and Ferdinando Carlo Valentino Gerosa, who reportedly acted as middlemen for AgustaWestland and helped in swinging the chopper deal from India.

Mr. Haschke also worked as a consultant for Finmeccanica, according to the Italian charge sheet. In intercepted conversations of the two, as quoted in the Italian report, the name of lawyer Gautam Khaitan also appears as the one who rendered assistance to them. Mr. Khaitan later has denied his involvement.

The Italian investigation report into the allegations of international corruption of by defence giant Finmeccanica which bagged the Rs. 3,600 crore contract from India to supply 12 VVIP AgustaWestland choppers reveals a complex maze of companies and middlemen through whom the kickback of nearly Rs. 362 crores was routed.

The report names the three Tyagi brothers — Julie, Docsa and Sandeep, cousins of the former Indian Air Force chief S. P. Tyagi — as intermediaries in corruption. It names Mr. Haschke and Mr. Gerosa and Christian Michel as intermediaries in the conclusion of agreements and supervisors to provide the resources needed to pay the “corrupt” Indian officials.

However, the former IAF chief, while admitting that the three Tyagi brothers were his cousins, has denied any knowledge about the nature of their business. He has maintained that while he was heading the Air Force between 2005 and 2007, the deal was finalised and signed three years later.

A detailed fact-sheet, released by the Defence Ministry on February 14, 2013 said that operational requirements for VVIP helicopters were deliberated at length between the Air Force, the National Security Advisor, the Special Protection Group (SPG), the Prime Minister’s Office and the Defence Ministry between March 2005 to September 2006 and changes were incorporated regarding bringing down the operational altitude to 4,500 metres and the cabin height. It also stated that the number of helicopters proposed for procurement was revised from eight to 12 by adding four in non-VIP configuration for security reasons.

The Italian charge sheet claimed that changes in technical requirements favoured AgustaWestland in the bidding process.

The Italian chargesheet gives details of interrogations of the middlemen and also relies on intercepted conversations in accordance with the Italian rules and legal provisions to elaborate upon the activities of Finmeccanica, nexus between the middlemen and their detailed knowledge about procurement of 12 AgustaWestland 101 helicopters by the Indian Defence Ministry.

One of the intercepts between Mr. Gerosa and Mr. Haschke which the report says is of “absolute importance” is dated November 19, 2012 which refers to the role played by Mr. Khaitan. In the intercept, Mr. Haschke boasts of squandering €10-15 million in dancers and champagne without sharing it with anyone. The intercept also refers to the route of Mauritius and Tunisia which was allegedly used to launder money received as kickbacks.

The report noted that during further probe in April 2012 at Mr. Haschke’s mother’s home the investigators found important documents hidden under a bed. The report used the intercepted conversation to show that corruption of public officials, being indulged by the intermediaries, was done with the consent of the leadership of AgustaWestland, especially now arrested CEO Giuseppe Orsi and Bruno Spangnolini, who headed AgustaWestland and is also under detention. It alleged that the top officials of the Italian firm were also aware that money was transferred through a fictitious contract with IDS India and Tunisia which were headed by intermediaries.

VVIP chopper scam: What the govt has to say

Feb 14, 2013
New Delhi: The government on Thursday formally asked Italian firm Finmeccanica to state whether any money was illegally paid to any Indian entity or individual amidst its warning of legal action including blacklisting of the firm.

Finmeccanica CEO Giuseppe Orsi. AFP

The Ministry of Defence, which is under attack over the issue, came out with a fact-sheet detailing the sequence of the Rs 3,600 crore deal for 12 helicopters clinched in 2010 by aFinmeccanica subsidiaryAgustaWestland.
It notes that the mandatory technical requirements of the chopper were changed in the tender during the Vajpayee government in 2003, with the then National Security Adviser Brajesh Mishra playing a key role.
The CEO of AgustaWestland has been asked to “categorically state the clear position in view of the current developments indicating specifically if any financial transaction has taken place with any Indian individual/entity which would be violative of the Integrity Pact or any other terms and conditions of the contract,” it said.
Noting that the contract with AgustaWestland carried an integrity pact that bars paying of bribes or involvement of middlemen, the Ministry warned of “strict action including cancellation of contract, recovery of payment, blacklisting and penal action can be taken against the vendors.”
It said the Government is “determined to take all possible legal and administrative action against the guilty parties and accordingly has ordered a thorough probe by CBI.”
The fact-sheet said that the first Request for Proposal was issued in March 2002 mandating a requirement of 6,000 metre (18,000 feet) flying altitude for selection of the chopper.
This requirement made it clear that AgustaWestland could not participate in the deal.
However, in a meeting convened by the Principal Secretary to PM on November 19, 2003, the prinicipal secretary “observed that his main concern was that the framing of the mandatory requirements has led us effectively into a single vendor situation.”
The Defence Ministry fact-sheet states that in a meeting convened by the then NSA, it was also noted that the President and the Prime Minister have rarely made visits to places involving flying at an altitude beyond 4500 metres and therefore it was decided to make the mandatory requirement for operational altitude 4500 meters.
“The higher flying ceiling of 6000 meters, and a cabinet height of 1.8 meters could be made desirable operational requirements,” it said.
The then NSA also suggested that the then IAF Chief ACM S Krishnaswamy and Defence Secretary may jointly review the matter to draw up realistic mandatory requirements satisfying operational, security and convenience requirements of VVIPs and also set in motion a fast track process for selection and acquisition of the replacement helicopters.
“In pursuance of the above directive, the Operational Requirements (ORs) were deliberated at length between IAF, NSA, SPG/PMO and Defence Ministry between March, 2005 to September, 2006 and the above indicated changes were incorporated,” the Ministry fact-sheet stated.
In these deliberations, the stakeholders took a decision to increase the number of choppers for VVIP duties from eight to 12.
After freezing the requirements, the Ministry issued the RFP on September 27, 2006 after which four vendors, namely Sikorsky, AgustaWestland, AW-101 helicopter and Russian Rosoboronexport responded to it. The Russian firm’s bid was rejected as it did not deposit the earnest money and integrity pact.
After comprehensive field evaluation trials, in which the Special Protection Group was also represented, Sikorsky was declared to be non-compliant for not meeting four staff requirements.
The Ministry said during the contract negotiations, the Air Headquarters recommended inclusion of more systems on-board the chopper including Traffic Collusion Avoidance System (TCAS-II) and Enhanced Ground Proximity Warning System (EGPWS) for all 12 helicopters and SPG/PMO recommended inclusion of Medevac System for 8 VVIP helicopters.
After agreeing to induct these systems on board the choppers, the Contract Negotiations Committee (CNC) thereafter, recommended conclusion of the contract at a negotiated price of Euro 556.262 million (around Rs 3,600 crore).
“On completion of CNC the proposal was submitted for approval of the Cabinet Committee on Security (CCS), which considered the proposal in its meeting held on 18 January 2010 and approved the proposal and a contract was signed on February 8, 2010,” the Ministry said.
The Defence Ministry said the contract signed with AgustaWestland includes “specific contractual provisions against bribery and the use of undue influence. Article 22 of the contract deals with penalty for use of undue influence. This clause entitles the ‘Buyer’ to cancel the contract with the ‘Seller’ and recover from him the amount of any loss arising from such cancellation.”
“Article 23 of the contract entitles the ‘Buyer’ to consider cancellation of the contract without any entitlement or compensation to the ‘Seller’ who shall be liable to refund all payments made by the ‘Buyer’ in terms of the contract along with interest,” it said.
The Ministry said any breach of the provisions of the Integrity Pact entitles the ‘Buyer’ to take actions against the ‘Seller’ which includes forfeiture of the earnest money, performance bond, cancellation of the contract without giving any compensation, to recover all the sums already paid with interest, to cancel any other contracts.
It also debars the bidder from entering into any bid from the Government for a minimum period of five years which may be extended.
The Defence Ministry said soon after the issue of alleged bribery came up in the media, it sought information from Italy and the UK about their investigations.
“Ministry received more than one communication from AgustaWestland confirming that the statements in the press are “completely unfounded and have been issued with malicious intent” and that ‘no commissions whatsoever were paid’ in the case,” it said.
The Ministry said a letter was received by it from the Director, Income Tax (Investigations) regarding allegations against Indians possibly involved in the deal as middlemen and seeking information about them.
“The current status of the case was conveyed to the income tax authorities in January 2013, in return, the Defence Ministry asked Income Tax to share with it any ‘credible information’,” it said.
PTI