In a major boost for the Narendra Modi government ahead of the 2019 election, the Supreme Court gave it a thumbs-up in the “sensitive” issue of purchase of 36 Rafale fighter jets.
A bench headed by Chief Justice of India Ranjan Gogoi held that “broadly the processes have been followed” and that India cannot remain unprepared in skies when its adversaries have acquired the most modern fighter planes.
“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,” said the bench, also comprising Justices SK Kaul and KM Joseph.
Underlining the limited scope of judicial review in the matters of defence deals, the top court maintained that it will not be correct for the court to sit as an appellate authority to scrutinise each aspect of the process of acquisition when the need and quality of Rafale aircraft are not in question.
“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 aircraft, of which, we have none,” said the bench.
The court further noted that the flurry of petitions were filed only after taking advantage of the statement by former French President Francois Hollande, regarding induction of Reliance Defence as the offset partner.
It noted that this was not a case to seek “clause by clause compliances” since “perception of individuals cannot be the basis of a fishing and roving enquiry by this court, especially in such matters”.
The bench shot down the petitioners’ arguments regarding the rationale behind purchasing only 36 air craft although the previous deal was for 126.
It pointed out that the previous deal, for some commercial reasons between Dassault Aviation and HAL, could not materialise and that conjectures in this regard would be of no use for the court.
“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. This is despite the fact that even before the withdrawal of RFP (request for proposal), an announcement came to be made in April 2015 about the decision to go in only for 36 aircraft,” added the court.
It further discarded the allegation of bias by the government in favour of Reliance Defence as the offset partner. Citing the Defence Procurement Procedure, the court said it remains a technical area where the bench did not need to delve into, especially on the basis of some statements in the press and interviews.
The bench emphasised there was no evidence of “commercial favouritism” and thus the allegations of cronyism did not find favour.
“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 (Indian Offset Partner) does not rest with the Indian government,” held the court.
Even on the aspect of pricing details, the bench expressed its satisfaction after examining the details given to it by the government in a sealed cover envelope.
“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,” said the court, after putting on record the government’s submission that the Rafale deal offers better terms in respect of the maintenance and weapon package.
The petitioners in the case included former Union ministers Yashwant Sinha, Arun Shourie, Aam Aadmi Party MP Sanjay Singh and Supreme Court lawyers ML Sharma and Vineet Dhanda.
The demands in these petitions were for nullifying the deal and order a court-monitored investigation into the alleged irregularities.