The Supreme Court in its much-awaited judgment on Rafale petitions given on Friday, December 14, 2018, the last day before the winter recess of the Court, has given no glory to the learned judges, especially the Chief Justice of India Ranjan Gogoi as the judgment seems to be an attempt to avoid all the contentious issues mentioned by the petitioners and somehow dismiss the petitions in a half hearted manner. The apex Court has not performed its supreme duty as the custodian of the nation. The field is wide open for a review petition accompanied by the battle of the opposition parties demanding the setting up of a JPC to probe the Rafale deal.
The way the Supreme Court bench endorsed the decision making process involving the Prime Minister is astonishing. This is the only area gone into by the three judges and the judgment clearly shows that they have ignored some of the major stages of the process involving serious violations on the part of the Indian Government. According to oral remarks made by the Chief Justice Gogoi, “we have studied the materials and interacted with the senior airforce officials. There was no occasion to doubt the process, we are satisfied and even if minor variations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the court”. If variations have occurred, the judgment should have mentioned that even while ruling out the need for probe. Since the Court has only limited its focus to the decision making process, the observations should have been comprehensive.
In fact, the judgment cursorily mentions that 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 should 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 practically come to an end resulting in a recall on RFP. Then the judgment mentions “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 the most important part involving the decision making process. The negotiations with HAL were abandoned and in a hurry Prime Minister took the decision on 36 aircraft. Strangely, the judges observe that “this is despite the fact even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircraft” Prime Minister made the announcement on April 10, 2015 and the HAL was in the negotiations till March 2015. Do this sudden shift was not a part of close scrutiny of the decision making process, though the judgment had to mention that even before the withdrawal of RPF, PM made the announcement.
Then surprisingly, instead of playing the role of the bench probing the decision making process in this important deal, the judges said our country cannot afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquired not only 4th generation but also fifth generation aircrafts of which we have none. It will not be correct for the Court to sit as an appellate authority to scrutinise each aspect of the process of acquisition. The petitioners gave all documented evidence of the sudden change that took place in the decision making process between March 2015 and April 10, 2015 but this was not taken into account and t he most important component of the decision making process that the Prime Minister unilaterally announced the decision during his visit to France, was not taken into account. In fact Narendra Modi’s name was not mentioned in this crucial part of the judgment on decision making process.
What was the actual situation? On April 11, 2015, the day after the announcement of the Indian PM about purchasing 36 Rafale in ready to fly condition was announced, Le Figaro, the newspaper owned by the Dassault group which will manufacture the aircraft, reported that the surprise of the day(meaning April 10 meeting Between Indian PM and French President Hollande) was that it was not the contract for t the purchase of 126 aircraft, 106 of which are assembled in India and being negotiated for three years, that was concluded. New Delhi has made use of a contract clause to order aircraft that will be built in France.
Thus even the Dassault company people were surprised at the change from 126 to 36 and the change of the offset partners but this crucial aspect of the decision making was overlooked by the judges in their judgment. The Congress and the Opposition can make full use of this haphazard order to demand probe by the JPC into the Rafale deal as the judgment does not cover the pricing part as also the offset partner issue. After assembly poll reverses, the Modi Government and the BJP have to be prepared for its battle to defend the deal. The judgment of the Supreme Court has given the saffrons no comfort as all the controversial issues remain untouched in the judgment. (IPA)