By Sangeeta Saxena
New Delhi. 14 December 2018. Supreme Court today gave a green signal to the Modi Government’s Rafale deal for procuring 36 of the fighter jets in a government to government sale from French government. In a judgement on the writ petitions filed by four different petitioners the apex court said , “in view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”
The relief was visible on the faces of both the Defence Minister and the Finance Minister when they addressed the media. Finance Minster Arun Jaitley reiterated that the Supreme Court verdict is absolutely conclusive and question of a Joint Parliamentary Committee(JPC) to convene on the issue is not there at all. In a war of perception the truth always prevails and allegations on the Rafale jet deal were “fiction writing” that compromised national security, he said. He added that disrupters have lost on all counts and falsehood compromised the security of the country but falsehood is bound to fall apart.
Nirmala Sitharaman, Defence Minister of India clarified that the NDA Government was buying two squadrons of 36 Rafale fighter jets in flyaway condition thus strengthening the Indian Air Force and the rest would be built under the Make in India strategic partnership model , the Request for Information (RFI) for which is already floated.
Both the Ministers strongly stated that the final price for both the normal aircraft and the weaponised aircraft are significantly lower than the previous order of 126 aircraft. Non weaponised aircraft is 9% cheaper and the weaponised one 20% cheaper, they informed.
The judgement also says that as per the Defence Offset Guidelines, the OEM is free to select any Indian company as its IOP. A joint venture is stated to have come into being between Reliance Defence and Dassault in February 2017, which is stated to be a ‘purely commercial arrangement’ between the two private companies. The OEM/vendor/TierI subvendor will be free to select the Indian offset partner for implementing the offset obligation provided the IOP has not been barred from doing business by the Ministry of Defence. The point remains that DPP 2013 envisages that the vendor/OEM will choose its own IOPs. In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides. “We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose the IOP does not rest with the Indian Government,” said the judgement.
The court also stated, “We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP as well as under the IGA. We have also gone through the explanatory note on the costing, item wise. Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircrafts. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package. It is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present. We say no more as the material has to be kept in a confidential domain.”
On the acquisition process irregularity charges the Apex Court judgement said, “We have studied the material carefully. We have also had the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court. We have been informed that joint exercises have taken place, and that there is a financial advantage to our nation. It cannot be lost sight of, that these are contracts of defence procurement which should be subject to a different degree and depth of judicial review. Broadly, the processes have been followed. The need for the aircrafts is not in doubt. The quality of the aircraft is not in question. It is also a fact 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. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP. We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126. We cannot possibly compel the Government to go in for purchase of 126 aircraft. This is despite the fact that even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircrafts. Our country cannot afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquired not only 4th Generation, but even 5th Generation Aircrafts, of which, we have none. It will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.
We may also note that the process was concluded for 36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing was called into question, then. It is only taking advantage of the statement by the exPresident of France, Francois Hollande that these set of petitions have been filed, not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decisionmaking process and pricing. We do not consider it necessary to dwell further into this issue or to seek clausebyclause compliances.”
The highest court of the land has put to rest all allegations hopefully and the benefit will be the nation’s . The Indian Air Force will start getting the aircraft from September 2019 which will add teeth to it’s already existing airpower. Politics on the security of the nation can only be called politics at it’s lowest ebb.