Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed the the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Court held that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that it’s original decision was based within the contours of Article 32 of the Constitution of India.

SK Kaul, J, writing for himself and Gogoi, CJ said,

“We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry.”

On the aspect of pricing, the Court held that it is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. It, further, said,

“As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.”

On the decision making process, the Court said that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.

On the argument by the petitioner that the prayer made was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts, the Court said that it wasn’t a fair submission as,

“all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.”

KM Joseph, J, in a separate but concurring opinion, wrote on the issue of registration of FIR

“This is not a case where an old argument is being repeated in the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed in the original innings. It is not the fault of the party if the court chose not even to touch upon it.”

He, however, noticed that the petitioners have filed the complaint fully knowing that Section 17A of the Prevention of Corruption Act, 1988 constitutes a bar to any inquiry or enquiry or investigation unless there was previous approval.

In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence 88 alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed.

Noticing the law as specified under Section 17A, he said,

“Even proceeding on the basis that on petitioners complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A.”

He, hence, held that though otherwise the petitioners may have made out a case, having regard to the law actually laid down in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed.

In the 2018 verdict, the Court had said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.

Hot Off The PressNews

Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and SK Kaul and KM Joseph, JJ has directed the Centre to file response by May 4 to the petitions seeking review of last December’s verdict by which the Court had dismissed the pleas challenging India’s deal to procure 36 Rafale fighter jets from France. The bench did not allow the plea of the Centre that it be granted four weeks time to file its response to the pleas.

The Court has fixed May 6 for hearing the petitions.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the Court giving clean chit to the Rafale deal. AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

In the verdict, the apex court said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal. It said,

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

The court said there was no substantial evidence of commercial favouritism to any private entity. It aslo said,

Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft manufactured by French aerospace company Dassault Aviation. A deal to procure the jets was signed between India and France in 2015. The delivery is expected to begin in September this year.


Also read:

Rafale Deal: SC dismisses Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible

Case BriefsSupreme Court

“Perception of individuals cannot be the basis of fishing and roving enquiry by the Court.”

Supreme Court: A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce. 

Background Note:

In June, 2001, an in-principle approval was granted for procurement of 126 fighter-jets to augment the strength of the Indian Airforce. A more transparent Defence Procurement Procedure (DPP) was formulated in the year 2002, further in the year 2005 a robust ‘offset clause’ was included in the DPP in order to promote Indigenisation which was followed by Services Qualitative Requirements (SQRs) in the year 2006. Later in the year 2007, Defence Acquisition Council (DAC) granted ‘Acceptance of Necessity’ for procurement of 126 medium multi role combat aircrafts.

Bidding process commenced in August, 2007 and the proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. Commercial bids were opened in November, 2011. Dassault Aviation was placed as the L-1 by January 2012. Negotiations commenced and continued but without any final result.

It has been stated that a process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015, which was finally withdrawn in June 2015. Negotiations were carried out and the process was completed with the approval of the Cabinet Committee on Security (CCS). Further, contract along with Aircraft Package Supply Protocol; Weapons Package Supply Protocol; Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23-09-2016 which were to be delivered from October, 2019.

Triggering Point for the present Writ Petitions:

In September, 2018, certain newspapers reported a statement made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India, which seems to have triggered the present petition.

Court’s Analysis & Decision:

The Bench noted that, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement. Referring to the decision in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, Court held that “it was not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review.” It was also stated by the Court that various judicial pronouncements from Tata Cellular v. Union of India, (1994) 6 SCC 651, emphasise the aspect that scrutiny should be limited to the Wednesbury Principle of reasonableness and absence of mala fides or favouritism.

Coming to the present issue, it was stated that it is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself, and the said aspect was highlighted and emphasized in the decision of Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215. Therefore, “the extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth for the same.”

Hence, the Court scrutinised the controversy raised in the writ petitions which primarily raise 3 broad areas of concern, namely, 

  1. decision-making process; 
  2. difference in pricing; and
  3. the choice of IOP.

On a careful consideration of every aspect of the above-stated issue and concerns, the Court extended its’ view by stating that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. To which the bench stated that there is no reason to really doubt the process and further they were informed that there is financial advantage to our nation.

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

In regard to the pricing issue, the Court stated that it is certainly not the job of the Court to carry out a 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.

Lastly, the Court stated that it is neither appropriate nor within the experience of the Supreme Court to step into the arena of what is technically feasible or not. According to the Court, there was no substantial record to show that this is a case of commercial favouritism.

Thus, the writ petitions were dismissed and held that there is no reason for any intervention by the Supreme Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.[Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 2807, decided on 14-12-2018]