Supreme Court junks Rafale review petitions, but keeps doors open for a CBI probe - Broadsword by Ajai Shukla - Strategy. Economics. Defence.

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Thursday 14 November 2019

Supreme Court junks Rafale review petitions, but keeps doors open for a CBI probe

The judgment clears the decks for 36 Rafales on order, and participation in a planned tender for 114 fighters

Ajai Shukla
Business Standard, 15th Nov 19

The Supreme Court (SC) on Thursday dismissed a clutch of petitions seeking a review of its December 2018 judgement, which had absolved the government of wrongdoing or procedural impropriety in concluding a Euro 7.8 billion purchase of 36 Rafale fighter aircraft from France in September 2016.

The apex court’s detailed order underlines its reluctance to involve itself in, or adjudicate on, the complex business of weapons procurement or inter-governmental defence contracts. 

“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 of those aircrafts have never been in dispute”, stated the judgment.

On the crucial aspect of the price paid for the Rafale, which the petitioners – lawyer Prashant Bhushan and former Bharatiya Janata Party (BJP) ministers Yashwant Sinha and Arun Shourie – contended was excessive, the judgment stated: “The Court satisfied itself with the material made available.” The material referred to was given by the government to the Court in a sealed cover.

Making clear the cursory nature of the Court’s scrutiny, the judgment stated: “It is not the function of this Court to determine the prices… The internal mechanism of such pricing would take care of the situation.”

Issues related to pricing and aircraft configuration “have to be left to the best judgment of the competent authorities,” said the judgment.

Yet, the judges simultaneously claimed: “We have elaborately dealt with the pleas of the learned counsel for the [petitioners]… under the heads of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. The judgment stated the Court had satisfied itself with “the correctness of the decision making process.”

The review petition filed by Bhushan, Sinha and Shourie in January 2019 contended their original petition had not sought any investigation by the SC. Rather, they had pleaded for registration of a First Information Report (FIR) by the Central Bureau of Investigation (CBI), which was the agency best qualified and equipped to handle such an investigation.

The judgment, however, rejected this contention. 

“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.”

The review petition also argued that the SC’s judgment on December 2018 was based on incorrect information submitted by the government under oath, and that additional information – published in the national media – had come to light, making it evident that the government had paid an inflated price for the Rafale, over the objections of its own price negotiation experts.

Responding to that, the Attorney General had objected in Court to the petitioners’ use of classified material relating to internal decision making, which he contended the media published in violation of the Official Secrets Act. However, in an order issued on April 10, the apex court rejected that contention, upholding freedom of the press.

Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul authored the first part of the judgment. However, the third judge on the bench, Justice KM Joseph, wrote a separate, but concurring, judgment that interpreted differently the petitioners’ prayer for a CBI inquiry.

Joseph opined that the main verdict (by Gogoi and Kaul) would not stand in the way of the CBI taking lawful action on the complaint, which was clearly a cognizable offence under the Prevention of Corruption Act, 2018. However, the CBI would be limited by Section 17A of the Act, which requires the government to accord prior permission for prosecuting an official for an offence carried out in the discharge of his duty.

Joseph’s judgment recognised that attempting to obtain government permission would be “a futile exercise” and that “the petitioners cannot succeed”. At the same time, he left the door open for a CBI inquiry with the statement: “It is my view that the judgment sought to be reviewed will not stand in the way of [the CBI] from taking action… [subject to]… obtaining previous approval under Section 17A of the Prevention of Corruption Act.”

One of the petitioners, Prashant Bhushan, confirms he will be demanding a CBI probe. “I will be writing to the CBI, asking the agency to approach the government for permission under Section 17A to investigate the Rafale scam,” said Bhushan.

Even as the SC deliberated the Rafale issue, the government has already made a major chunk of payment to French firm Dassault for 36 Rafales. The first fighter is scheduled to be delivered in mid-2020. Thursday’s judgment clears the decks for Dassault to offer the Rafale in another on-going Indian procurement for 114 medium fighters.

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