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The Supreme Court of India dismissed the petitions challenging the Rafale deal citing the boundary of Judicial Review. Considering the corruption allegations made in the petition, the Apex Court stated that it could not find any reason for intervention by the Court on the sensitive issue of purchasing 36 aircraft by the individuals. Hon’ble Chief Justice of India Mr Ranjan Gogoi said the perception of individuals is no basis for ‘fishing and roving’ by the Court.
The bench clarified that the stand it has taken is by exercising of the jurisdiction under Article 32 of the Indian Constitution to which the petitioners have resorted. Furthermore, the court observed that it is not a contract for the construction of roads, bridges etc. but a contract concerning national sovereignty and security. The judgment implies that although the court approached the issue within the scope of judicial review, it cannot subject the defence contract to in-depth scrutiny by the court per se. Having made it clear in the inception that the court would not examine the comparative merits of the deal; instead, it would scrutinize the decision-making process and not the rationale behind the reason.
The Hon’ble bench of the apex court was concerned with three domains, namely: (i) Decision-Making Process (ii) difference in pricing (iii) the choice of an Indian Offset Partner. On perusal of the judgement, some of the excerpts are elucidated below:
Insofar as the decision-making process is concerned, the court said it had examined the relevant material with deliberation coupled with seeking clarifications from the senior Air Officers in respect of various related aspects, including acquisition process and pricing. On this position, the court cannot entertain scepticism about the decision-making process; and even if there is a minor deviation, there would not be any consequence of setting aside the contract or further examination by the court into the matter. In a nutshell, the court stated that the process has been duly followed.
The long-term negotiations regarding the purchase of 126 MMRCAs have not reaped the fruits, and supposing that the initial RFP could have resulted in the formation of a contract is trivial. The court observed that the initial contract including the related negotiations had faced its end, resulting in the recall of RFP. It is not possible for the court to compel the Government to purchase 126 aircraft in lieu of 36 aircraft. An announcement was also made before the withdrawal of RFP that the Government shall go for only 36 aircraft.
Our country would manage to avoid security concerns by the acquisition of not only 4thgeneration but even 5th generation aircraft which we have none. There are no doubts and questions on the need and quality of the aircraft, and thus, it would not be proper to examine by the court every process of the acquisition.
Insofar as the pricing details on the purchase of Rafale aircrafts are concerned, they remain classified as per Article 10 of IGA between the Government of India and the Government of France; the provision provides that the protection of classified information and material exchanged under IGA would be governed by the Security Agreement signed between both the Governments on January 25, 2008. Therefore, it is not for the court to look into matters related to pricing.
As per the suggestions of the press releases, there has been an arrangement between the parent Reliance Company and Dassault in 2012 itself. The question about the matters happened between the two companies are left to them, being their commercial interests, as seen by them. The commercial arrangement per se does not validate the supposition that Indian Government plays a role with respect to the engagement of the IOP.
The option to choose IOP does not lie in the hands of the Government. Further, a mere commercial arrangement does not convince the court to accept that the Indian Government has shown commercial favouritism to one company, nor is there any substantive evidence to justify the same. The court said that mere press interviews/suggestions cannot be the basis for judicial review exercisable by this court.
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