This Research Paper is written by Surabhi Rana, a Fifth Year B.A LL.B (Hons.) Student at Amity Law School, Delhi.
ABSTRACT
The Supreme Court in Manohar Lal Sharma v. Narendra Damodardas Modi[1], held that there was no reason to order a court-monitored inquiry and neither was there any need for an intervention by the court in the purchase of 36 Rafale fighter jet aircraft because of lack of any reasonable apprehension as to the procedure, pricing or the choice of Indian offset partners, all three grounds that were raised as areas of concern in the petitions filed.
This much-awaited and controversial judgment came after a group of Public Interest Litigation (s) were filed after some newspapers reported former French President Francois Hollande stated that France was not left with any choice as to the Indian Offset Partners and Reliance Group was the only name suggested by the Government of India. Under the petition, quashing of the Inter-Governmental Agreement (2016) of purchasing 36 Rafael Fighter jet aircraft, between France and India was also sought as a relief, along with the relevant provisions of the Indian Penal Code, 1860 and an independent probe. Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan were the prominent actors who also filed a petition seeking registration of FIR in the Rafale deal and later filed for a review by the Supreme Court as well.
This article seeks to unfold the entire sequence of events that led to this from the early 21st century till the date of the decision. In the article, the prior conditions of the deal and then its change with the change in government and what triggered the petitions referred and the allegations involved will also be discussed. The article seeks to give a comprehensive view of the journey of Rafael from France to India via discussing in detail the Manohar Law Sharma v. Narendra Damodardas Modi case and its various contentions.
INTRODUCTION
The history behind the judgment and the filing of concerned petitions goes back to 2015 when the process for withdrawal of a proposal of 126 medium multi-role combat aircraft was initiated. The earlier deal was replaced by a new one, when an Indo-French statement was issued, in April 2015, announcing the acquisition of 36 Rafael fighter jet aircraft in flyaway condition, via an Inter-Governmental Agreement and it was duly approved by the Defence Acquisition Council (DAC). Various other contracts and agreements were filed, with respect to Rafael deal, including, Aircraft Package Supply protocol, Weapons Package Supply Protocol, Technical agreements, and Offset Contracts. And the aircraft was supposed to be delivered in a phased manner from October 2019.
What triggered the filing of the relevant petitions and PIL(s) were the reports by certain newspapers which claimed that former President of France, Francois Hollande had made a statement saying that the French have no option in the selection of the offset partner and that the Reliance Group was the only name put forward by the Government of India. However, the deal and negotiations with the French did not just begin in 2015 and actually dates back to the year 2001, in an India post – Kargil war. India had to advance its military and strategic capabilities and needs and hence, in light of this the proposal of 126 fighter jets to enhance the strength of the Indian Air Force was approved. The chronology and sequence of events are discussed in brief below[2] :
- June 2001 – An approval granted for the procurement of 126 fighter jets from
- December 2002 – A transparent Defence Procurement Procedure formulated for the first time.
- 2005 – An offset clause included in the DPP.
- 2006 – Services qualitative requirements prepared
- 2007 – Acceptance of Necessity granted by the Defence Acquisition Council (18 direct fly away aircraft were to be acquired from the original equipment manufacturer and the remaining 108, were to be manufactured by Hindustan Aeronautics Limited, under license).
- By 2011- The technical and field evaluations of the proposals submitted by the vendors under the bidding process were completed by the year 2011.
- Commercial bids were opened and Dassault Aviation’s Rafael came up with the lowest bid. Then a Workshare Agreement was signed between Hindustan Aeronautics Limited and Dassault aviation with 70% and 30 % work share respectively for the 108 aircraft. And in the middle of the year 2014, there was a change in the political scenario of the country and NDA led government came into power.
ALLEGATIONS OF A DEFENCE SCAM POST-2015
The allegations of a potential defense scam first surfaced after certain French media outlets claimed that the former French President Francois Hollande was left with no choice as to the offset partner but only given Reliance Group as a candidate. However, the French government, as well as Dassault denied any such imposition.
Prashant Bhushan, an eminent lawyer, along with Yashwant Sinha and Arun Shourie, submitted a complaint with the Central Bureau of Investigation, and urged for a preliminary inquiry by the CBI into the Rafale Deal and also filed for various charges under the Prevention of Corruption Act against the government for their dealing of the Rafale aircraft. They also questioned the legitimacy of Reliance Defence being chosen as the offset partner, despite having zero experience in the concerned field along with many of its companies being in debt, amidst the claims made by the French media outlets that the former French President was basically left with no choice.
Apart from this, the government stated in the parliament that the cost of buying the Rafale fighter jet aircraft was approximately 670 Crores per aircraft. However, Dassault Aviation’s annual report revealed that the deal was concluded at about 60000 crores, which was almost double the amount stated by the government in the parliament. This further led more suspicion amongst the public and in pursuance of this a Public Interest Litigation (PIL)
was filed in the Supreme Court, seeking an independent probe and declaration of the cost involved in the Rafale deal in front of the Parliament. The Supreme Court agreed to hear this PIL. Along with this a fresh PIL was filed asking the center to submit the details of the agreement with the French government in ‘sealed cover’. And around the same time Prashant Bhushan, Yashwant Sinha, and Arun Shourie moved to SC seeking to register FIR in the Rafale deal. The particulars of the case and the final judgment are discussed further.
THE SUPREME COURT PROCEEDINGS
The Supreme Court in October 2018, asked the center to file the details of the decision-making process and the pricing details involved in the purchase of 36 Rafael aircraft. The Centre filed the details and steps taken to finalize the deal in a sealed cover in November 2018. In December 2018, the Supreme Court dismissed all petitions seeking CBI to register FIR in the Rafale deal while stating that there was no reason to doubt the steps or process involved in the making of the Rafale deal by the Modi government. The Supreme Court decided on the three main contentions under the petitions, i.e
- Decision-making process
- Difference in pricing
- Choice of Indian Offset Partner (IOP)
Regarding all these contentions, the Supreme Court held, respectively that
- Making a reference to Siemens Public Communication Networks Pvt. Ltd. and Anr. v. Union of India and Ors, the court held that the tender was not regarding the simple construction of roads and bridges but rather related to matters of national security, and in such situations, a huge leeway is given to the government concerned. And the three pillars on which judicial scrutiny is permissible in such situations include, ‘illegality’, ‘procedural impropriety’ and ‘irrationality’.
- Regarding the pricing contention, the SC said that the government had not disclosed the entire pricing details in the parliament, owing to national security issues and the agreement with France. The full pricing details were shared and disclosed to the Comptroller and Auditor General of India and the report examined by the Public Accounts Committee (PAC). Apart from this the Inter-Government Contract (IGA) between India and France also protected the classified information.
- In respect with the choice of Indian offset partner , the court held that the Defence procurement procedure clearly lays down that the choice of Indian offset partner lies with the original equipment manufacturer , and the court would not entertain suspicions of a few individuals and certain reports , which have also been denied by the concerned individuals ( Dassault and Former French President )
Later in January, 2019, Union Ministers Yashwant Sinha and Arun Shourie along with Prashant Bhushan moved to SC seeking review of the Rafael verdict and the SC decided to hear the review petition. In a surprising development, the documents related to the Rafael Deal were stolen from the Defence Ministry. And on the basis of these documents, esteemed newspaper, The Hindu published articles on them. The Centre threatened the Hindu with the Official secrets Act for publishing articles based on the documents relating to National Security. Despite Centre’s objections with the use of leaked secret documents, the SC allowed the use of those documents. While dismissing the review petitions the court stated that the need for Rafale aircrafts have never been in doubt and are much needed and the original of 126 aircrafts, almost 12 years ago, never achieved any fruitful results. Regarding the pricing of the aircrafts, the court stated that the basic price of aircraft was already disclosed by the government, which was substantially lower than the original price of aircrafts.
CONCLUSION
After much conflict, allegations and anticipation, the Supreme Court held the Rafael deal to be without any malice, corruption or irregularities and reiterated the importance and necessity of the deal.
It is pertinent to note that requisite checks and balances on the government in power is of utmost importance and if any supposed irregularity or impropriety catches on to someone’s eye , it is one’s greatest duty to the nation , to bring it to the attention of the authorities . In the present case, after certain reports claimed that the former French president had made a certain statement , it was thought necessary to bring it to the attention of the highest court of the land and rightly so . After long and tedious arguments on both sides, the Supreme Court finally decided. The veracity of the French President’s alleged statement was cast aside since the French government and Dassault denied making any such statement and since the choice of offset partner was with them, there was no point in doubting the Indian Government in its intentions in this regard. As to the pricing details and decision making process, all these contentions were also cleared by the Centre and the Supreme Court took those into consideration and finally held that the deal was without any corruption or malice and emphasized on how the deal was a necessity to the nation.
In the end of July this year, the first batch of Rafale fighter jet aircrafts arrived, as the public cheered and rejoiced. The Rafael deal was without a doubt of utmost importance to our Sovereign Nation and national security. And after going through the proper procedure and Supreme Court proceedings, the doubts on it have been cast aside for the time being.
[1] (2019)3SCC25
[2] The Hindu