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.

SC to decide on CBI inquiry into Rafale deal today

NEW DELHI: The Supreme Court is set to pronounce its verdict on Friday seeking a court-monitored Central Bureau of Investigation (CBI) probe on 36 Rafale fighter jets from French company Dassault Aviation. 

The verdict will be declared by a three-judge bench headed by Chief Justice Ranjan Gogoi. Senior Air Force officers had to attended the hearing to clear doubts of the judges on the necessity of getting Rafale fighter jets. The BJP government had signed an intergovernmental deal with France in 2016 for the sale of 36 Rafale MMRCA aircraft in flyaway condition. 

The new deal for Rafale by the Modi government replaced one being negotiated by the previous United Progressive Alliance government. The Centre on Thursday told the Parliament that it owes debt-ridden national carrier Air India Rs 1,000.62 crore.  



No Rafale probe Supreme Court dismisses PILs

NEW DELHI: The Supreme Court said today dismissed all the four petitions 
seeking a court-monitored investigation into the Rafale deal and said there won’t be any probe into the pricing or the decision-making process. 

The verdict was given by a three-judge bench, headed by Chief Justice of India Ranjan Gogoi. In its last hearing, the court had reserved the verdict. The ruling today came on four petitions that had asked the Supreme Court to set up a court-monitored probe into the signing of the Rafale deal. 

The Supreme Court says it is not for the court to scrutinise the process of acquisition. While reserving the verdict, the apex court had said that the pricing details of Rafale jets could only be discussed after it decides on whether to make it public. 

At the core of the opposition to the Rafale deal were charges that the Modi government had knowingly overpaid for the Rafale fighter jets and that it had promoted crony capitalism. The government has told the court that it has no sovereign guarantee from France that Dassault will meet its obligation of delivering the 36 fighter jets.

IAF officers assist SC on Rafale deal case

NEW DELHI: Deputy Chief of Air staff, Air Marshal V R Chaudhari and two other officers from Indian Air Force appeared before the bench headed by Chief Justice Ranjan Gogoi  to assist it on the issue of the procurement of 36 Rafale fighter jets from France.

The bench, also comprising Justices S K Kaul and K M Joseph, asked the officials about latest induction in the Air Force. “We are dealing with the requirements of the Air Force and would like to ask an Air Force officer on Rafale jets. We want to hear from an Air force officer and not the official of the Defence Ministry on the issue,” the bench said when the Attorney General began his arguments on behalf of the Centre in the pre-lunch session Wednesday.

Four top officers, including Vice Chief of Air Staff Air Marshall Anil Khosla, Air Marshall V R Chaudhari and J Chelapati, who appeared before the court, submitted that there has been no fresh induction after Mirage aircraft in 1985.

Supreme Court reserves order on pleas seeking court-monitored probe in Rafale deal

NEW DELHI: The Supreme Court on Wednesday reserved its order on petitions, seeking court-monitored probe in procurement of 36 Rafale fighter jets from France. A bench comprising Chief Justice Ranjan Gogoi and Justices S.K. Kaul and K.M. Joseph concluded the arguments advanced by various parties which have also sought registration of FIR in connection with the alleged irregularities in the deal.

The bench also observed that any discussion on the contentious issue of pricing of the Rafale jets can only take place if the facts on the deal are allowed to come in the public domain. The Centre defended the secrecy clause related to the pricing of the 36 Rafale fighter jets and said it cannot divulge details of the deal.

In his argument, Attorney General KK Venugopal said that even the Parliament has not been told about the complete costs of the fighter jets. “I decided not to peruse it myself as in a case of any leak, my office would be held responsible,” he said.

Rafale deal: SC seeks pricing details of 36 fighter jets from Center in sealed cover

New Delhi: The Supreme Court on Wednesday asked the Center to place before it in a sealed cover within 10 days the pricing details of 36 Rafale fighter jets India is buying from France.

A bench headed by Chief Justice Ranjan Gogoi also said that details, including the steps in the decision making process for the procurement of jets, which could “legitimately” be brought into public domain, be made available to the parties who have filed petitions before it in the matter.

After the court dictated the order, Attorney General K K Venugopal told the bench that pricing details of these jets were not even shared with Parliament.

The bench, which also comprised Justices U U Lalit and K M Joseph, told the Attorney General that if the pricing detail was “exclusive” and it could not be shared with the court then the Centre should file an affidavit in this regard and say so.

“If pricing is something exclusive and you are not sharing it with us, please file an affidavit and say so,” the bench told Venugopal in its oral observations.

The bench made it clear that at this stage, details which might be considered to be “strategic and confidential” by the government be placed before the court and might not be given to the advocates appearing for the petitioners.

The court noted in its order that pursuant to its October 10 direction, the government has placed before it in a sealed cover a note giving the “details of the steps in the decision making process leading to the award of 36 Rafale jet-fighters/fighter aircrafts”.

“At this stage, we would not like to record any finding or views with regard to the contents of the said report. Rather, we are of the opinion that such of the core information conveyed to the court in the aforesaid confidential report which can legitimately be brought into the public domain be made available to the counsels for the petitioners in all the cases, as well as, the petitioners-in-person,” the bench said.

It said further details that could legitimately come in public domain with regard to induction of Indian offset partner, if any, be also furnished to the petitioners.

“Such of the details in this regard which may be considered to be strategic and confidential may, at this stage, be placed before the court and may not be furnished to the counsels for the parties or the petitioners-in-person,” the court said.

“The court would also like to be apprised of the details with regard to the pricing/cost, particularly, the advantage thereof, if any, which again will be submitted to the court in a sealed cover,” the bench said in its order.

When Venugopal told the bench that report which the Centre has already placed before the court was covered under the Official Secrets Act and could not be shared, the bench made it clear that confidential and strategic information need not be shared.

The apex court also observed that in none of the public interest litigations (PILs) filed before it in the matter, the “suitability” of Rafale fighter jets and its “utility” to the Indian Air Force have been questioned.

“What has been questioned is the bona fides of the decision making process and the price/cost of the equipment at which the same is to be procured,” it said.

The bench said that necessary details be communicated to the advocates for the parties before it and the petitioners-in-person.

It also said that “the rest of the details in terms of the present order be submitted to the court in a sealed cover in the next ten days. The parties may file their response to the information that would be conveyed”.

The bench has posted the matter for further hearing on November 14.

During the brief hearing, advocate Prashant Bhushan, who along with former Union ministers Arun Shourie and Yashwant Sinha has filed a petition in the matter, said they were seeking a court-monitored CBI probe into the Rafale jets deal.

“That you will have to wait,” the CJI said, adding, “Let CBI put its house in order first.” 

Shourie was present in the court during the hearing of the four PILs filed by lawyers M L Sharma and Vineet Dhanda, one by Sinha, Shourie and Bhushan and another by AAP leader Sanjay Singh. 

Advocate Dheeraj Kumar Singh, appearing for AAP MP Sanjay Singh, said he has also filed a plea seeking setting up of an special investigation team under the court’s supervision to probe the Rafale deal.

“What is his (Sanjay Singh) interest? We do not have to entertain so many petitions,” the bench said and asked the counsel if the petitioner was aware of the pricing.

When the lawyer said Sanjay Singh knows the price, the bench said, “You keep it to yourself. You are one of the fortunate who know the price”.

Advocate M L Sharma, also a petitioner, said he has filed an application seeking hearing on his plea after upcoming assembly elections in five states — Madhya Pradesh, Chhattisgarh, Rajasthan, Mizoram and Telangana.

“Which elections?,” the bench asked, adding, “Business of this court cannot be stopped for elections”.

When Sharma again referred to the elections, the bench said, “How are you concerned with elections?”.

The bench then told Venugopal and Solicitor General Tushar Mehta, “We are proposing to pass some order. Please listen to it very carefully”.

India signed an agreement with France for the purchase of 36 Rafale fighter aircraft in a fly-away condition as part of the upgrading process of the Indian Air Force equipment. 

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

SC to hear plea challenging Rafale deal on October 10

New Delhi: The Supreme Court will hear a fresh PIL against the Rafale deal between India and France on Wednesday.

A bench of Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph Monday said it will hear the PIL filed by lawyer Vineet Dhanda, who is seeking a direction to the Centre to reveal details of the deal and the comparative prices during the UPA and NDA rule in a sealed cover to the apex court.

The petition also sought information about the contract given to Reliance by Dassault.

Advocate M L Sharma’s plea, filed earlier, alleging discrepancies in the fighter jet deal with France and seeking a stay on it will also come up for hearing on October 10. 

Sharma claimed in his plea that the inter-government agreement to buy 36 Rafale fighter jets must be quashed as it was an “outcome of corruption” and not ratified by Parliament under Article 253 (Parliament has power to make any law for implementing any inter-government agreement) of the Constitution.

A similar plea was filed in the apex court in March this year seeking an independent probe into the Rafale deal and disclosure of the cost involved in the deal before Parliament.

The plea, filed by Congress leader Tehseen S Poonawalla, had sought a direction against the Centre on why the Union Cabinet’s approval was not sought as part of the Defence Procurement Procedure (DPP) before signing the procurement deal with France on September 23, 2016.

Rafale deal is a defence agreement signed between the governments of India and France for the purchase of 36 Rafale fighter aircrafts in a fly-away condition as a part of the upgrading process of Indian Air Force equipment.

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft (MMRCA) manufactured by French aerospace company Dassault Aviation.

Indian Air Force had advanced a proposal to buy 126 fighter aircraft in August 2007 and floated a tender. Following this, an invitation was sent to various aviation companies to participate in the bidding process.

Supreme Court agreed to hear plea on Rafale deal next week

NEW DELHI: A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud considered the plea of advocate M L Sharma and agreed to hear next week seeking a stay on the Rafale fighter jet deal between India and France.

The controversial purchase of 36 Rafale aircraft was deal signed between India and France in 2015. Advocate M L Sharma listed in his plea urgent hearing. In his PIL, Sharma had alleged discrepancies in the fighter jet deal with France and sought a stay on it.

Sharma has claimed in his plea that the inter-government agreement to buy 36 Rafale fighter jets must be quashed as it was an “outcome of corruption” and not ratified by Parliament under Article 253 (Parliament has power to make any law for implementing any inter-government agreement) of the Constitution.

The Congress had earlier said the deal signed by the National Democratic Alliance (NDA) government smacked of corruption and crony capitalism. Congress President Rahul Gandhi had said the price negotiated by the NDA government for 36 Rafales that were to be purchased under a government to government deal in a fly away condition were higher than prices negotiated by the previous  United Progressive Alliance (UPA) government.

In January this year, a plea was filed in the apex court seeking an independent probe into the Centre’s decision to procure 36 Rafale fighter jets from France.