Tribune News Service
New Delhi, December 14
In a big relief to the Narendra Modi government, the Supreme Court on Friday dismissed petitions seeking a court-monitored probe into the purchase of 36 Rafale fighter jets from France under an inter-government agreement.
A Bench of Chief Justice of India Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph said there were no irregularities in the deal and the decision making process for the purchase 36 Rafale fighter jets from Dassault was above board.
The court said the need for fighter jets and Rafale's quality we're never under question and it was not the court's job to get into comparative pricing details.
"We cannot go into the wisdom of why the deal for 36 Rafale jets was made and not the original 126 aircraft. We cannot ask the government to go for 126 aircraft," the Bench said.
For the first time, four senior IAF officers – three Air Marshalls and an Air Vice Marshall – and Additional Secretary (Defence) had appeared in the top court to explain various aspects of a defence deal.
CJI Gogoi had asked several questions about previous acquisitions, which generation of aircraft IAF was using. Air Vice Marshall J Chalapathi had told the Bench that the last acquisition was Sukhoi-30 and before that Mirage Aircraft were bought in 1985.
He had said while most of the countries were using 4th and 5th generation fighter planes, IAF was using 3rd or sub-4th generation (3.5) aircraft.
"Our country can't remain unprepared when adversaries have acquired 4th & 5th generation fighter jets compared to none by India. We have interacted with senior Indian Air Force officers and there is no doubt about need and quality of Rafale jets," the Bench said.
It's not correct for the court to sit as an appellate authority on every aspect of the deal," the Bench added.
Terming it "unfortunate", Prashant Bhushan, cousel for one of the petitioners said, "It's a totally incorrect judgment given by the Supreme Court."
The top court had reserved the verdict on November 13 on the contentious issue after hearing arguments from counsel for the petitioners, including Prashant Bhushan, senior journalist Arun Shourie and Attorney General KK Venugopal who had defended secrecy clause of the deal estimated to be of Rs 58,000 crore.
Alleging irregularities in the deal, petitioners ML Sharma, Prashant Bhushan, Vineet Dhanda and Sanjay Singh had demanded registration of an FIR and a court-monitored investigation into it.
Following the court’s October 31 order, the Centre had submitted in a sealed cover the pricing details of 36 Rafale jets.
The process of acquisition had started in 2001 and India was to purchase 126 Medium Multi Role Combat Aircraft (MMRCA) but the contract negations reached a stalemate and Request for Proposal compliance was finally withdrawn in June 2015. During the protracted process India’s adversaries modernized their combact capabilities, the AG had submitted.
It was in this background that India signed an agreement with France in September 2016 for the purchase of 36 Rafale fighter aircraft in a fly-away condition as part of upgrading process of the Indian Air Force equipment.
It has better deliverables, the AG had said, adding norms prescribed under Defence Procurement Policy -2013 were followed.
The Bench said, "Minor variations in clauses should not amount to setting aside of the Rafale jet deal.
The Bench agreed with Attorney General's argument that the decision on types of aircraft and weapons needed to be procured was a matter for experts and could not be adjudicated upon by the judiciary.
Apex court observations
On Decision-Making Process
“We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the court.”
On Comparative Pricing
“It is certainly not the job of this 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.”
On Offset Partner
“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.”
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