New Delhi, In a huge relief to the government, the Supreme Court on Friday dismissed four petitions seeking court-monitored probe into the purchase of 36 Rafale jet fighters in ready-to-fly condition, holding that the decision-making process is not in doubt and that it cannot go into the question of pricing and choice of Indian offset partner by the French manufacturer Dassault.
Referring to their interaction with senior Air Force officers and the material placed before it, a bench of Chief Justice Ranjan Gogoi, Justice Sanjay Krishan Kaul and Justice K.M. Joseph said: “We are satisfied…there is no occasion to really doubt the decision-making process.”
“…even if minor deviations have occurred, that would not have resulted in either setting aside the contract or requiring a detailed scrutiny by the court,” said Chief Justice Gogoi pronouncing the judgment, disposing of a bunch of PILs including by an NGO headed by activist-lawyer Prashant Bhushan.
The judgement came as a relief to the government which was battered mainly by the Congress which has been alleging corruption in the deal and favouritism in awarding offset contracts to Reliance Defence, a firm belonging to the group headed by Anil Ambani. But the Congress party was not among the petitioners.
Saying that it found no reason for any intervention on the purchase of 36 fighter aircraft by the government, the court said: “Perception of individuals can’t be the basis of a fishing and roving inquiry by this Court, especially in such matters.”
Addressing the issue of national security, the court said: “Our country can’t afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only the 4th Generation, but even 5th Generation Aircraft, of which, we have none.”
Having found no infirmity in the decision-making process, the court said: “It will not be correct for the court to sit as an appellate authority to scrutinise each aspect of the process of acquisition.”
Noting that there is a financial advantage to the nation in the deal and broadly the processes have been followed, the court said: “It can’t be lost sight of that these are contracts of defence procurement which should be subject to a different degree and depth of judicial review.”
Observing that the need and the quality of the aircraft is not in question, the court said that the long negotiations for procurement of 126 aircraft (18 in a ready-to-fly condition and 108 to be manufactured by (HAL) had not produced any result and there is no use conjecturing that the initial RFP could have resulted in a contract.
The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, the court said apparently justifying abandoning the procurement of 126 aircraft in favour of 36 in a ready-to-fly condition.
“We can’t sit in judgment over the wisdom of deciding to go in for purchase of 36 aircraft in place of 126,” the court said, adding it cannot possibly compel the government to go in for purchase of 126 aircraft.
However, the court noted that the announcement of the decision to procure 36 fighter jets in a ready-to-fly condition was made in April 2015 even before the withdrawal of RFP for procurement of 126 aircraft.
On the pricing, the court said: “It is certainly not the job of this court to carry out comparison of the pricing details in matters like the present.”
“We say no more as the material has to be kept in a confidential domain,” the court said noting that there is commercial advantage in the purchase of the 36 aircraft and certain better terms in Inter-Government Agreement (IGA) qua maintenance and weapon package.
The court noted that except the Comptroller and Auditor General of India (CAG), the government has not shared the information of pricing with anyone and even the Parliament was given the basic price of the aircraft on the ground that the sensitivity of the pricing details could affect national security.
“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 court said.
However, it was shared with the top court to “satisfy its conscience”.
“We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation cost as under the original RFP. We have also gone through the explanatory note on the costing, item wise,” the court said.
On the choice of Indian offset partner (IOP) Reliance, the court said that the role of Indian government cannot be envisaged as it was entirely for the vendor Dassault to make a choice.
“We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian government, as the option to choose IOP does not rest with the government,” the court said rejecting the allegation of favouritism by the petitioners.
On the genesis of the controversy, the court also noted that the deal for procuring 36 Rafale jets was concluded on September 23, 2016 and nothing was called into question till former French President Francois Hollande in an interview alleged pressures form Indian government on the choice of offset partner.
“It is only taking advantage of the statement by ex-President of France Hollande that these set of petitions have been filed, not only qua the aspect which form the statement, that is, the issue of IOPs but also with respect to entire decision-making process and pricing,” the court said noting the timing of the filing of the four petitions.
