[dropcap]S[/dropcap]INCE December 14, 2018, enough has been written on the now infamous Rafale judgement. Still, looking at it once again before the Supreme Court reopens after winter holidays is not a bad idea.
On many occasions, the judgement gives a feel that the bench considered the petitions of only M L Sharma and Vineet Dhanda, and not of the others.
In this article, let us try to analyse the flaws in the judgement and where all it contradicts itself.
The first problem is when the Court said: "We also make it clear that while requiring the Government of India to act in the above terms we have not taken into account any of the averments made in the writ petitions which appear to be inadequate and deficient. Our above order is only for the purpose of satisfying ourselves in the matter." As per Supreme Court Rules Order XXXVIII, Rule 8 says: "The petition shall be posted before the Court for preliminary hearing and orders as to the issue of notice to the respondent. Upon the hearing, the Court, if satisfied that no fundamental right guaranteed by the Constitution has been infringed or that the petition is otherwise untenable, shall dismiss the petition and if not so satisfied, shall direct a rule nisi to issue to the respondent calling upon him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear and be heard."
Para 6 of the judgement says: "….it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement and to indicate whether such parameters are more constricted than what the jurisprudence of judicial scrutiny…".
Para 15 reads: "It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held, would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely, (i) the decision making process; (ii) difference in pricing; and (iii) the choice of IOP." These points make it apparent that the entire impugned judgement is qua the issues raised by petitioners which the Court, by contradicting itself had described as "inadequate and deficient".
Further, in Para 22 of the judgement, it says "….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." This is rather interesting. The third petition – filed by Prashant Bhushan, Arun Shourie and Yashwant Sinha – neither requested the court to set aside the contract nor asked for a detailed scrutiny by the court, but requested for an investigation by CBI into the allegations. And the wordings "even if minor deviations have occurred" are more curious. It shows that the Court understands there are violations of the set process.
In the same para Court says: "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. … It will not be correct for the Court to sit as an appellate authority to scrutinise each aspect of the process of acquisition." The third petition did not mention anywhere that the Court should ask the Government to go for 126 aircraft. The question is not the wisdom of Government while deciding to procure 36 aircraft instead of 126, but the procedures the Government followed to reach that number. Nobody asked the court to sit as an "appellate authority to scrutinise each aspect of the process".
In para 2, the judgement explains the process followed: "On 29th June 2007 the Defence Acquisition Council ("DAC") granted the "Acceptance of Necessity" for the procurement of 126 Medium Multi Role Combat Aircrafts (for short "MMRCA") including 18 direct flyaway aircrafts (equivalent to a single squadron) to be procured from the Original Equipment Manufacturer ("OEM") with the remaining 108 aircrafts to be manufactured by Hindustan Aeronautics Limited (for short "HAL") under licence, to be delivered over a period of 11 years from the date of signing. The bidding process commenced in August 2007. Six (06) vendors submitted proposals in April, 2008. The proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. All these were completed in the year 2011. The commercial bids were opened in November, 2011 and M/s Dassault Aviation (hereinafter referred to as "Dassault") was placed as the LI sometime in January 2012."
In Para 3, the Court says: "A process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015. On 10th April, 2015 an IndoFrench joint statement, for acquisition of 36 Rafale Jets in flyaway condition through an InterGovernmental Agreement (hereinafter referred to as "IGA"), was issued and the same was duly approved by the DAC. The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015."
And in Para 22, the court observed: "Broadly, the processes have been followed." There is a huge problem with this observation. Didn't the Court notice that the explained process which it mentioned was followed for the procurement of 126 aircraft? When the Court itself says that the process to withdraw the RFP for 126 aircraft started in March 2015, when did the Government start the process for the procurement of 36 aircraft? There are enough materials and evidence available in public domain to show that the announcement made on April 10, 2015 in the joint statement for the purchase of the 36 aircraft was a unilateral decision of Prime Minister Narendra Modi and that the decision was taken without even consulting with the then Defence Minister of the country — Manohar Parrikar. That exactly is the violation. Did the Court forget to ask the Government to submit the process followed for the procurement of 36 aircraft? If so, on what confidence and based on what evidence did the Court stat in Para 22 that "Broadly, the processes have been followed"?
Again, if the process for the withdrawal of the RFP was started in March 2015, didn't the Government bother to inform that to Dassault Aviation and French government? If the process was started in March, as the Government claims, there is enough evidence in public domain which suggests Dassault Aviation CEO Eric Trappier was not aware of it. Between March 10 to 15, in various press conferences in France, Trappier informed the media that the contract negotiation with India for 126 Rafale jets had almost reached the final stage and his company Dassault had signed a workshare agreement with Hindustan Aeronautics Limited to build 108 Rafale jets in India and stipulated the warranty responsibilities of each parties for the Indian-manufactured Rafale aircraft. On March 25, Trappier, while delivering the first two upgraded Mirage to the IAF from their facility in France, in the presence of the then Indian Ambassador to France and senior IAF and HAL officials, openly stated that his company's contract negotiation for the sale of 126 Rafale to India was almost complete and it was expected that the contract would be signed soon. He expressed happiness for HAL's association with Dassault and said the relationship between both the companies would be more strengthened once the Rafale contract was signed. These were the facts mentioned in detail by the third set of petitioners, but which the Court ignored.
In para 2, while describing the process followed, the Court observed the DAC approval for the procurement of 126 MMRCA given on June 9, 2007 and the bidding process commenced in August 2007. That means, the Court is aware that the approval of the DAC is necessary for further process in defence procurement. But in para 3, it says: "On 10th April, 2015 an IndoFrench joint statement, for acquisition of 36 Rafale Jets in flyaway condition through an InterGovernmental Agreement (hereinafter referred to as "IGA"), was issued and the same was duly approved by the DAC."
In 1981, a seven-judge constitution bench, in S.P.Gupta vs Union of India had held that in case of the question of privilege, the Court has the discretion to examine the primary documents in respect of which the privilege is claimed in order to determine whether the privilege was justified. But in this case, without seeing anything, but an unsigned "note with bullet points" in a sealed cover, the court has decided an important case. In simple words, the court has taken the secondary document – a note – on face value and decided a case without verifying the primary documents!
In Para 25 of the judgement, it says: "The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as "CAG"), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as "PAC"). Only a redacted portion of the report was placed before the Parliament, and is in public domain."
Just a day after the judgement was announced, the Opposition parties and well-known legal luminaries like Indira Jaising, Prashant Bhushan, Sanjay Hegde and many others pointed out the flaws in the Supreme Court verdict.
Here, the rules of the Supreme Court (order XII, rule 3) says: "…a judgement pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission". In this judgement, there is no arithmetical mistake, clerical mistake and accidental slip. Certainly there are omissions, but of the verifiable evidences submitted before the Court. Hence, the order can be reviewed through order XLVII rule (2), which states: "An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. (3). Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed."
Para 32 of the judgement states: "It is no doubt true that the company, Reliance Aerostructure Ltd., has come into being in the recent past, but the press release suggests that there was possibly an arrangement between the parent Reliance company and Dassault starting from the year 2012." And while reviewing the price factor, the judgement states in Para 33 that, "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". Here, the Court is saying it can depend on newspaper articles to confirm something, but can't depend on the same to confirm something else related to the same matter. Isn't this a self-contradiction? And there was a case in Supreme Court of India not so long ago, which explains the bitter business rivalry between the two Ambani brothers.
In Para 25, the judgement mentioned: "The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008." It shows the Court's over-dependence on the note provided by the Government. The mentioned security agreement is a document which is very much in public domain and nowhere it is mentioned that the commercial transaction details of a defence deal must be kept secret. And again, without verifying the primary documents (IGA and the Security Agreement), the Court depended on the secondary document.
In Para 32, it says: "In fact, the suggestion of the Government seems to be that there were some contractual problems and Dassault was circumspect about HAL carrying out the contractual obligation, which is also stated to be responsible for the non-conclusion of the earlier contract." This is another example of Court heavily depending on the Government submitted note, without giving a chance to the petitioners to verify the veracity of the Government claims. There are interviews, even video recorded ones, in public domain in which Dssault CEO Eric Trappier says all the problems between his company and HAL pertaining to the Rafale production deal had been sorted out and a formal work share agreement was signed.
While dismissing the case, in the last para (Para 36), the Court said: "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." In an article published in News Central 24X7, Faizan Mustafa, Vice-Chancellor NALSAR University of Law, Hyderabad explored the judgement in detail. Mustafa explains: "Thus court certainly has the power to examine how the deal of 126 Rafale aircrafts was changed to just 36 and how country's crucial defence capabilities can be adequately enhanced with just 36 Rafale aircrafts. If this change was arbitrary as it on the face of it looks like, Supreme Court should not have refused to get it probed by referring to its limited role under writ jurisdiction under Article 32. Similarly in deciding arbitrariness, court could have legitimately examined crucial issues i.e., how the benchmark price was altered at the last minute or why decision on benchmark price was not taken by the defence ministry but by the Cabinet or when was the old deal abandoned and new finalised or did new deal comply with the established procedure and how the deal without sovereign guarantee promotes the so-called national interests."
Mustafa continues: "The other justification of court's refusal to order any probe was the limited scope of judicial review in policy decisions. What is policy decision? If it means social-economic goals, court cannot interfere but if it means even the methods by which such goals are to be realised, courts do have a right to examine such methods. The court itself has held that if constitutionalism is the ultimate policy of the republic and the constitution nation's ultimate policy document, courts must examine the policies wherever there is possibility of misuse of power and cannot shy away from their constitutional duties."
"Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement." – wrote Justice P N Bhagwati in Ramana Dayaram Shetty Vs The International Airport Authority of India and Others. But in the award of 36 aircraft Rafale deal, the award of contract and its other functions like offset are seemingly arbitrary.
Till then, this order will remain as an embarrassment to our supreme judiciary, and will work the best as a piece of incorrigible fantasy.
[Ravi Nair broke the story on Rafale deal and is writing a book on it.]