NEW DELHI – The Supreme Court Thursday gave clean chit to the Modi government on the purchase of 36 fully loaded Rafale fighter jets from French company Dassault Aviation, rejecting the plea for registration of an FIR by the CBI for alleged commission of cognisable offence in the deal.
The apex court dismissed the pleas seeking review of the December 14, 2018 verdict in which it had said that there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets.
The top court was not satisfied with the submission that it decided the disputed questions of facts in the Rs 58,000 crore deal “prematurely” without investigation.
The rejection of review petitions is tantamount to the apex court giving the clean chit to the Narendra Modi government for the second time.
“We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects.
“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,” said a bench headed by Chief Justice Ranjan Gogoi.
The review applications cannot be entertained unless there is an “error apparent on the face of the record”, the apex court said.
The bench said it cannot lose sight of the fact that it is 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.
“We had concluded that other than the three aspects — Decision Making Process, Pricing and Offsets — that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry.
“We were, however, cautious to note that this was in the context of the writ petition filed under Article 32 of the Constitution of India, the jurisdiction invoked,” said the bench, also comprising Justices S K Kaul and K M Joseph.
The petition seeking re-examination of the December 14, 2018 verdict was filed by former Union ministers Yashwant Sinha, Arun Shourie and activist lawyer Prashant Bhushan.
Other review petitions were filed by lawyer Vineet Dhandha and Aam Aadmi Party lawmaker Sanjay Singh.
The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.
While dealing with the allegation of irregularities on the pricing of the jets, the top court said that it satisfied itself with the material made available and it is not the function of this court to determine the prices and act on mere “suspicion” of certain persons.
“The internal mechanism of such pricing would take care of the situation. 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 bench said.
With regard to the decision making process, the apex court said the petitioners contended there was contradictory material on the basis of certain documents obtained.
“We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.
“In this context reference was made to (a) Acceptance of Necessity granted by Defence Acquisition Council not being available prior to contract which would have determined necessity and quantity of aircrafts; (b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure; (c) oversight of objections of three expert members of Indian Negotiating Team regarding certain increase in benchmark price; and (d) induction of Reliance Aerostructure Limited as an offset partner,” the apex court said.
The bench said it appears that the petitioners construed themselves as an appellate authority to determine each aspect of the contract and involve the court to do the same.
“We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process,” the bench said.
On the contention that some aspects were not available to them and came to light subsequently by their ‘sourcing’ information after the December 14, 2018 decision, the apex court said, “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”.
Chronology of events in Rafale fighter jets deal case
Following is the chronology of events in the Rafale fighter jets deal in which the Supreme Court on Thursday rejected review petitions against its verdict giving clean chit to the Narendra Modi government:
-Dec 30, 2002: Defence Procurement Procedures (DPP) adopted to streamline process.
-Aug 28, 2007: Ministry of Defence issues Request for Proposal for procurement of 126 MMRCA (medium multi-role combat aircraft) fighters.
-Sep 4, 2008: Anil Ambani-led Reliance Group incorporates Reliance Aerospace Technologies Ltd (RATL).
-May 2011: Air Force short-lists Rafale and Eurofighter jets.
-Jan 30, 2012: Dassault Aviation’s Rafale aircraft comes up with the lowest bid.
-Mar 13, 2014: Work Share agreement signed between HAL and Dassault Aviation under which they were responsible for 70 per cent and 30 per cent of the work, respectively, for 108 aircraft.
-Aug 8, 2014: Then defence minister Arun Jaitley tells Parliament that 18 direct ‘fly-away’ aircraft expected to be delivered in 3-4 years from signing of the contract; remaining 108 aircraft to be delivered in the next seven years.
-Apr 8, 2015: The then foreign secretary says detailed discussions underway between Dassault, MoD and HAL -Apr 10: New deal for acquisition of 36 direct ‘fly-away’ aircraft from France announced.
-Jan 26, 2016: India and France sign MoU for 36 Rafale aircraft.
-Sep 23: Inter-governmental agreement signed.
-Nov 18: Government states in Parliament that the cost of each Rafale aircraft to be approximately Rs 670 crore and that all aircraft will be delivered by April 2022.
-Dec 31, 2016: Dassault Aviation’s Annual Report reveals the actual price paid for the 36 aircraft at about Rs 60,000 crore, more than double the government’s stated price in Parliament.
-Mar 13, 2018: PIL in SC seeks independent probe into Centre’s decision to procure 36 Rafale fighter jets from France and disclosure of the cost involved in the deal before Parliament.
-Sep 5: SC agrees to hear PIL seeking stay on Rafale fighter jet deal.
-Oct 8: SC agrees to hear on October 10 fresh PIL seeking direction to Centre to file in ‘sealed cover’ the details of the agreement for buying 36 Rafale fighter jets.
-Oct 10: SC asks Centre to provide details of decision making process in the Rafale fighter jet deal in a sealed cover.
-Oct 24: Former Union ministers Yashwant Sinha and Arun Shourie and activist-lawyer Prashant Bhushan moves SC, seeking registration of FIR into Rafale fighter jet deal.
-Oct 31: SC asks Centre to place it in sealed cover within 10 days the pricing details of 36 Rafale fighter jets.
-Nov 12: Centre places price details of 36 Rafale fighter jets in a sealed cover before SC; it also gives details of steps that led to finalisation of the Rafale deal.
-Nov 14: SC reserves judgement on pleas seeking court-monitored probe in Rafale deal.
-Dec 14: SC says there is no occasion to doubt the decision-making process of the Modi government and dismisses all the petitions seeking direction to the CBI to register an FIR for alleged irregularities in the jet deal.
-Jan 2, 2019: Sinha, Shourie and Bhushan move SC seeking review of its December 14 judgement.
-Feb 26: SC agrees to hear review petitions in open court -Mar 13: Govt tells SC that documents filed by review petitioners are sensitive to national security.
-Apr 10: SC dismisses Centre’s objection claiming privilege over documents by petitioners to seek review.
-Apr 12: BJP MP Meenakshi Lekhi moves SC against Rahul Gandhi for wrongly attributing his ‘chowkidar chor hai’ remarks on Rafale to the apex court.
-Apr 23: SC issues contempt notice to Rahul Gandhi for his remarks on Rafale verdict.
-May 8: Gandhi tenders unconditional apology in SC -May 10: SC reserves verdict on review pleas and contempt petition.
-Nov 14: SC dismisses review pleas against its verdict in the Rafale deal, rejects contention that there was need for registration of an FIR in connection with the procurement of 36 fighter jets from French firm Dassault Aviation
SC closes contempt plea against Rahul Gandhi.
Rafale deal: SC closes contempt proceedings against Rahul Gandhi, asks him to be careful in future
The Supreme Court on Thursday closed the contempt plea against Congress leader Rahul Gandhi for wrongly attributing to the apex court his “chowkidar chor hai” remark against Prime Minister Narendra Modi in connection with the Rafale case.
The court said the remarks made by Gandhi were far from true and he should have refrained from those and could have been careful.
“It is unfortunate that without any verification certain remarks were made by the contemnor (Rahul Gandhi) against the prime minister,” a bench comprising Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph said.
The bench referred to the affidavit filed by him tendering unconditional apology and said, “Gandhi enjoys an important position in political spectrum and no court should be dragged to political discourse, whether valid or invalid”.
“Mr. Gandhi needs to be more careful in future,” the bench added.
The bench noted that subsequently the contemnor has filed an affidavit that contempt proceedings should not be taken forward.
“In view of the affidavit filed by Gandhi, we close contempt proceedings initiated against him,” the bench said.
The court’s verdict came on the contempt plea filed against Gandhi by BJP MP Meenakshi Lekhi.
Gandhi had made the remarks on April 10, the day the apex court had dismissed the Centre’s preliminary objections over admissibility of certain documents for supporting the review petitions against the December 14 last year verdict in the Rafale case.
The court had on May 10 reserved the judgement on Lekhi’s contempt plea filed against Gandhi for the “chowkidar chor hai” remarks against Modi, which the top court had said were incorrectly attributed to it.
Gandhi, who was then the President of the Congress Party, had told the bench that he has already tendered unconditional apology for wrongly attributing the remarks relating to the prime minister to the apex court.
Senior advocate A M Singhvi, appearing for Gandhi, had told the bench that the Congress leader expressed regret over the wrongful attribution to the apex court.
Senior advocate Mukul Rohatgi, appearing for Lekhi, had submitted that the apology tendered by Gandhi should be rejected and action must be taken against him as per the law.
Gandhi had on May 8 tendered unconditional apology in the apex court for wrongfully attributing to it his “chowkidar chor hai” remark in the Rafale verdict and said that he holds the top court in the “highest esteem and respect” and any attributions to it were “entirely unintentional, non-wilful and inadvertent”.
The three-page affidavit was filed by Gandhi after he had drawn flak from the apex court on April 30 over his earlier affidavit in which he had not directly admitted his mistake for incorrectly attributing the contemptuous remark to the top court.
The apex court on April 15 had given a categorical clarification that in its Rafale verdict there was no occasion for it to make a mention of the contemptuous observation that “chowkidar Narendra Modi chor hain” as has been attributed to it by Gandhi.
Gandhi, in his explanation filed in the court earlier, had said that his statement was made in the “heat of political campaigning” and there was not the “slightest intention to insinuate” anything regarding the Supreme Court proceedings in any manner.
He had said that his April 10 statement was made in purely political context to counter the “misinformation campaign” being led by senior BJP functionaries as well as the government that the apex court verdict of December 14 last year was a “clean chit” to the Centre regarding all the aspects of the Rafale deal.
Truth has prevailed, Rahul Gandhi should apologise to nation: BJP on Rafale verdict
Hitting hard at Rahul Gandhi after the Supreme Court gave a clean chit to the government on the Rafale deal, BJP working president J P Nadda said the Congress leader had tried to mislead the country on the issue and should now apologise.
Asserting that truth has prevailed, Nadda said, “From road to Parliament, Rahul Gandhi and his party tried hard to mislead the country on this issue but truth prevailed. I wish Rahul Gandhi would be in country and should apologise to nation.”
BJP leaders also took a dig at the former Congress president after the apex court asked him to be careful in future while closing a plea for contempt case against him for wrongly attributing certain comments on the Rafale deal to it.
“SC rejects review petitions on Rafale deal & raps Rahul Gandhi & asks him to be careful in future. Huge victory for Narendra Modi-led government,” BJP general secretary (organisation) B L Santhosh tweeted.
Echoing similar sentiments BJP spokesperson Shahnawaz Hussain said truth has triumphed and that it is a huge victory for the Modi government.
“Truth triumphs. Truth can be bothered but not defeated,” he said.