Rafale review petition: Plea to rethink rejection of SC-guided probe into 36-jet deal

Ananthakrishnan G
India’s intention to buy the 36 aircraft in “fly-away” condition was announced by Prime Minister Narendra Modi during his visit to France in April 2015.

Who filed the review petitions and why?

There were two review petitions — one by former Union Ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, the other by Aam Aadmi Party Rajya Sabha member Sanjay Singh. They urged the Supreme Court to reconsider its December 14, 2018 verdict dismissing the prayer for a court-monitored investigation into the India-France deal for the purchase of 36 Rafale fighter aircraft. A three-judge Bench of the Supreme Court headed by Chief Justice of India Ranjan Gogoi and comprising Justices S K Kaul and K M Joseph, reserved its judgment on the review pleas on May 10.

What is the Rafale controversy about?

The opposition had alleged that the aircraft, built by Dassault Aviation of France, was purchased under a direct government-to-government agreement at a much higher price than the one negotiated for 126 aircraft by the UPA government under an open tender.

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India’s intention to buy the 36 aircraft in “fly-away” condition was announced by Prime Minister Narendra Modi during his visit to France in April 2015. A few days later, then Defence Minister Manohar Parrikar announced that the earlier deal for 126 jets — stalled over price since 2012 — was dead. The deal for the 36 aircraft — a new acquisition — was signed by Parrikar and his French counterpart Jean-Yves Le Drian on September 23, 2016.

The IAF had issued a tender for 126 Medium Multi-Role Combat Aircraft (MMRCA) in 2007, and at the end of a stringent selection process in 2012, Rafale was chosen.

What did the SC say in its December 14, 2018 judgment?

There were four petitions before the court — one each by lawyers M L Sharma and Vineet Dhanda, one by Sanjay Singh, and one by Sinha, Shourie, and Bhushan. The petitions questioned the decisionmaking process, pricing, and selection of offset partner.

Dismissing all the petitions, the Bench said it saw “no reason for any intervention... on the sensitive issue of purchase of 36 defence aircraft by the Indian Government”, and that “perception of individuals cannot be the basis of a fishing and roving enquiry..., especially in such matters”.

It rejected pleas for a court-monitored investigation into the deal, saying there was “no occasion to doubt the (decisionmaking) process” leading to the award of the contract, and there was nothing to show that the government had favoured anyone commercially.

The court refused to get into the question of pricing: “It is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present”.

Former Defence Minister Manohar Parrikar and his French counterpart Jean-Yves Le Drian exchange documents of memorandum of understanding on the purchase of Rafale combat jets, at Hyderabad House in New Delhi on September 23, 2016 (Express Photo/Renuka Puri)

On the choice of Anil Ambani-owned Reliance Aerostructure Ltd as an offset partner by Dassault too, the court said: “Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not.”

The judgment pointed out that the Defence Procurement Policy (DPP) 2013 “envisages that the vendor/OEM (Original Equipment Manufacturer) will choose its own IOPs (Indian Offset Partners)”, and that “in this process, the role of the Government is not envisaged...”. It added that “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 the IOP does not rest with the Indian Government.”

On the decisionmaking process, the Bench ruled: “Broadly, the processes have been followed. The need for the aircraft is not in doubt. The quality of the aircraft is not in question. It is also a fact that the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RFP could have resulted in a contract is of no use. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP.”

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

What additional material did the review petitions present?

The petition by Sinha, Shourie, and Bhushan said the court had relied on “patently incorrect” claims made by the government in its note submitted in a sealed cover to the Bench that had heard the original petition. Also, additional information had emerged subsequently, and not considering it would result in a grave miscarriage of justice.

The petition relied on certain documents related to the deal which were published by The Hindu newspaper and later by the news agency ANI.

What did the Supreme Court say in its order of April 10, 2019?

The court rejected the government’s objections to the admissibility of the documents sought to be relied on by the review petitioners.The government had taken the stand that these documents were unauthorisedly photocopied and leaked, and that they enjoyed protection under The Official Secrets Act, 1923.

The government sought their removal from the record of the case, saying they were of sensitive nature and, if they were made public, they could jeopardise national security.

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