Rafale deal: Supreme Court clean chit to Modi govt for second time

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 in two separate but concurring verdicts said the review petitions were without merit and required to be dismissed.

The top court rejected 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.

It 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 court said it had examined the three aspects (pricing, decision making process, offsets) on merits and did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR.

The rejection of the review petitions is tantamount to the apex court giving the clean chit to the Narendra Modi government for the second time.

Chief Justice Ranjan Gogoi and Justice S K Kaul, who were part of the three-judge bench, said: “There was no ground made out for initiating prosecution under section 340 of CrPC.

“We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.”

Justice K M Joseph in his separate but concurring findings held that the December 14, 2018 would not come in the way of the CBI from acting on the complaint, made by former Union ministers Yashwant Sinha, Arun Shourie and activist advocate Prashant Bhushan, seeking lodging of an FIR.

“It is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent (CBI) in…from taking action on…complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act,” Justice Joseph said.

CJI Ranjan Gogoi and Justice S K Kaul said that the court 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 for those aircrafts has never been in dispute”.

Dealing with the registration of FIR aspect, they said: “No doubt that there was a prayer made for registration of FIR and further investigation but then once we had examined the three aspects (pricing, Decision Making Process, Offsets) 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.”

The two judges, in their 16-page separate verdict, dealt with the issue of pricing of Rafale fighter deal and said it is satisfied with the material made available.

“It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court,” they said.

The CJI and Justice Kaul said that on perusal of documents on pricing issue, the court had found that “one cannot compare apples with oranges” and the internal mechanism of such pricing would take care of the situation.

“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 two-judges said.

On the decision making process, they said, “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”.

Justice Kaul, who wrote the judgement for himself and the CJI, said: “It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon 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.”

With regard to another controversial issue of Indian offset partner for Rafale fighter deal, the two-judges dealt with the averment that court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother.

“That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it,” the two-judge said in their verdict.

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