SC gives clean chit to Modi Govt on Rafale deal

15/12/2018

New Delhi, Dec 14: The Supreme Court Friday gave the Narendra Modi government a clean chit on the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking a direction to the CBI to register an FIR for alleged irregularities in the deal.
A bench headed by Chief Justice Ranjan Gogoi said there was no occasion to doubt the decision-making process in the multi-billion dollar deal.
On the issue of offset partner, the bench, also comprising Justices S K Kaul and K M Joseph, said there was no substantial evidence of commercial favouritism to any private entity.
The top court said there has been a necessity for fighter aircraft and the country cannot remain without jets.
The CJI, who read out the judgement for the three-judge bench, said no reasons were found to interfere in the procurement process for the fighter jets.
The apex court said it is not the job of the court to deal with the comparative details of the pricing.
It said it does not find substantial matter to interfere with the issue of procurement, pricing and offset partner.
It noted the need for induction of 4th and 5th generation of fighter aircraft like Rafale in the Indian Air Force.
Both sides involved in the deal have clarified all aspects in the procurement of Rafale jets deal, the bench said.
The court said nobody questioned the procurement of Rafale jets when deal was finalised in September 2016.
It added that questions were raised on the jet deal only after former French president Francois Hollande came out with the statement. This cannot be the basis of judicial review, it said.
The court said it cannot compel the government to procure 126 or 36 fighter jets. That depends on its decision.
The verdict was pronounced on a batch of pleas seeking a court-monitored probe into deal.
The apex court reserved its verdict on the batch of pleas on November 14.
Advocate M L Sharma was the first petitioner in the case. Later, another lawyer Vineet Dhanda had moved the apex court with the plea for court-monitored probe into the deal. AAP leader Sanjay Singh has also filed a petition against the fighter jet deal.
After the three petitions were filed, former Union ministers Yashwant Sinha and Arun Shourie along with activist advocate Prashant Bhushan moved the apex court with a plea for a direction to the CBI to register FIR for alleged irregularities in the deal.
The Supreme Court on Friday said the material placed before it shows that the Centre did not disclose in Parliament the pricing details of the Rafale fighter jet, but revealed it to the Comptroller and Auditor General.
It said that CAG report was even examined by the Public Accounts Committee (PAC) of Parliament.
"The material placed before us shows that the government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries," a bench of Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph said.
It said the pricing details have, however, been shared with the Comptroller and Auditor General (CAG), and the report of the CAG has been examined by the Public Accounts Committee (PAC).
"Only a redacted portion of the report was placed before the Parliament," the bench said in its verdict as it dismissed a batch of pleas seeking a court-monitored probe into the 36 Rafale fighter jet deal and direction to the CBI for registering an FIR for alleged irregularities.The Supreme Court tracked the development of the Rafale deal from the post-Kargil days till the Narendra Modi government took a final decision for procuring the fighter jets from France -- a pact that had earlier failed to fructify despite long running negotiations during the UPA regime.
The top court said the necessity to upgrade the strategic needs of the country's armed forces was felt in the post-Kargil war days and it resulted in Request for Proposal (RFP) for procurement of 126 Medium Multi Role Combat Aircrafts (MMRCA).
A bench of Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph noted that in June 2001, an in principle approval was granted for procurement of 126 fighter jets to augment the strength of the Indian Airforce which resulted in formulation of a more transparent Defence Procurement Procedure (DPP) for the first time in 2002.
"A robust offset clause was included in the DPP in the year 2005 so as to promote Indigenisation and to that effect Services Qualitative Requirements (SQRs) were prepared in June 2006," the bench said.
It said that on June 29, 2007, the Defence Acquisition Council (DAC) granted the 'Acceptance of Necessity' for the procurement of 126 MMRCA, including 18 direct fly -away aircraft to be procured from the Original Equipment Manufacturer (OEM), with the remaining 108 aircrafts to be manufactured by Hindustan Aeronautics Limited (HAL) under licence -- to be delivered over a period of 11 years from the date of signing of contract.
The bench said that subsequently the bidding process was commenced in August 2007 and six vendors submitted proposals in April, 3 2008.
"The proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. All these were completed in the year 2011," it said, adding that the commercial bids were opened in November, 2011 and Dassault Aviation was placed as the L I category sometime in January 2012.
"Negotiations commenced thereafter and continued but without any final result. In the meantime, there was a change of political dispensation at the Centre sometime in the middle of the year 2014," the court noted in its verdict.
It noted the submission of Centre said that negotiation continued and a process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015.
"On April 10, 2015 an Indo- French joint statement, for acquisition of 36 Rafale Jets in fly-away condition through an Inter-Governmental Agreement (IGA), was issued and the same was duly approved by the Defence Acquisition Council (DAC). The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015," the bench noted. It added that negotiations were carried out and the process was completed after Inter- Ministerial Consultations with the approval of the Cabinet Committee on Security (CCS).
"The 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 September 23, 2016. The aircrafts were scheduled to be delivered in phased manner commencing from October 2019," the bench said.
It highlighted that things remained quiet until sometime in the month of September, 2018, when certain newspapers reported a statement claimed to have been 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.
The court added 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.

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