No probe in Rafale deal: Supreme Court dismisses review plea
In a unanimous verdict — written by justice SK Kaul for himself and Chief Justice of India Ranjan Gogoi, and a separate concurrent judgment by KM Joseph — the court said that unless there was an error on record, review applications did not need to be entertained.Updated: Nov 15, 2019 00:35 IST
The Supreme Court on Thursday refused to review its 2018 order that dismissed pleas seeking a court-monitored probe of alleged irregularities in the ₹59,000 crore Rafale fighter jet deal, reiterating its earlier decision that it was not for the court to determine the price at which aircraft are bought — a move the government said vindicated its stand.
“Supreme Court’s decision to dismiss the review petition on Rafale is a befitting reply to those leaders and parties who rely on malicious and baseless campaigns.Today’s decision, yet again, reaffirms Modi sarkar’s credentials as a govt which is transparent and corruption free,” home minister and Bharatiya Janata Party president Amit Shah tweeted.
In a unanimous verdict — written by justice SK Kaul for himself and Chief Justice of India Ranjan Gogoi, and a separate concurrent judgment by KM Joseph — the court said that unless there was an error on record, review applications did not need to be entertained.
The judges also corrected an “error” in its December 14, 2018 judgment.
“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,” the court said in the verdict by justices Kaul and Gogoi, refusing to embark on a “roving and fishing enquiry”. “We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed.”
In his concurring judgment, justice Joseph said that the verdict would not stand in the way of the Central Bureau of Investigation (CBI) taking action in the case on its own, after getting the necessary permissions from the government in accordance with the law.
He, however, noted that under Section 17A of the Prevention of Corruption Act, prior approval of investigation is required, and according to the apex court’s judgment in the 2013 Lalita Kumari case, FIR in corruption cases have to be registered after a preliminary inquiry if the information is unclear about a cognizable offence. Such an inquiry was not asked for in the petitions.
The Congress claimed that Joseph’s observation paved the way for a “comprehensive criminal investigation” into the case and called for a Joint Parliamentary Committee probe.
“Justice Joseph of the Supreme Court has opened a huge door into investigation of the Rafale scam. An investigation must now begin in full earnest. A Joint Parliamentary Committee (JPC) must also be set up to probe this scam,” Gandhi tweeted.
However, Justice Joseph’s comments were a reiteration of the law as it stands – that an investigating officer can investigate a case even after a magistrate dismisses the need for an investigation – lawyer Nikhil Mehra pointed out on Twitter.
All investigations involving government functionaries needs approval from the government under the Prevention of Corruption Act.
The National Democratic Alliance (NDA) government’s decision to enter a government-to-government deal with France to buy 36 Rafale warplanes made by Dassault Aviation was announced in April 2015, with an agreement signed a little over a year later. This replaced the previous United Progressive Alliance (UPA) regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by the state-owned Hindustan Aeronautics Ltd.
The Congress quickly claimed that the price at which NDA was buying the Rafale aircraft was ₹1,670 crore for each, three times the ₹526 crore, the initial bid by the company when the UPA was trying to buy the aircraft.
The NDA did not disclose details of the price, said the UPA deal, struck in 2012, was not a viable one, implying that it would have never been closed and that, therefore, any comparison was moot. Indeed, the UPA was not able to close the deal till 2014, largely over discussions related to pricing of items not included in the initial bid. The NDA also said that the current deal included customised weaponry.
The deal also courted controversy on account of the fact that one of the offset deals signed by Dassault was with the Reliance Group of Anil Ambani. The Congress claimed the earlier deal was scuppered and a new one signed just to provide Ambani this opportunity. Both the government and Reliance have repeatedly denied this.
On December 14, 2018, the court rejected petitions for a court-monitored CBI probe into the deal, but former Union ministers Yashwant Sinha, Arun Shourie, lawyer Prashant Bhushan and others filed a review plea.
One of their contentions was that the government had misrepresented facts in a sealed-cover submission to the court. They pointed out that the 2018 judgment mentioned a Comptroller and Auditor General probe report while there no such document at the time of the judgment.
But in its verdict on Thursday, the bench allowed the Centre’s petition that argued that there had been a misinterpretation of the note, and “corrected” its 2018 judgment.
“On hearing learned counsel for the parties, we are of the view that the confusion arose on account of two portions of the paragraph referring to both what had been and what was proposed to be done. Regardless, what we noted was to complete the sequence of facts and was not the rationale for our conclusion,” the verdict by CJI Gogoi and justice Kaul said.
The bench held that it was not the court’s function to determine the details of pricing and that internal mechanisms would suffice. “On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. 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,” the two judges said on the petitioners’ argument on alleged irregularities on the pricing of the jets.
The court also refused to analyse additional material submitted by the petitioners. “We decline to, once again, embark on an elaborate exercise of analysing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters,” held the judges.
The court found it unfair on the part of the petitioners to say that it had not dealt with their prayer to order registration of an FIR by the CBI. “No doubt that there was a prayer made for registration of FIR. 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,” the judges said.
A key argument made by the petitioners was that the government allegedly concealed documents, including a dissent note, by three members of the Indian negotiating team. But these documents did not convince the court to alter its view. The judges said any decision-making process did envisage debate. “It was not possible to have a uniform standard of judicial review in matters of contract and procurement...it would vary with the subject matter of the contract,” the verdict said.
In February, the Comptroller and Auditor General said in its audit of the deal that the price at which the NDA acquired the aircraft was actually marginally lower than it would have been under the UPA deal.
On October 8, defence minister Rajnath Singh formally received the first Rafale jet. The first batch of four Rafale jets are expected in India by May 2020, and all 36 planes are expected to arrive by September 2022.