The Supreme Court Thursday dismissed petitions seeking review of its December 14, 2018 decision to reject a plea for a court-monitored probe into India’s purchase of 36 Rafale fighter aircraft from France.
The bench headed by Chief Justice of India Ranjan Gogoi rejected attempts by petitioners, former Union Ministers Yashwant Sinha, Arun Shourie and advocate Prashant Bhushan, to rely on additional documents related to the deal which were published by The Hindu and subsequently carried by news agency ANI.
Justice K M Joseph, who along with the CJI and Justice S K Kaul made the bench, in a separate concurring judgment said though the review had been dismissed, it will “not stand in the way” of the CBI from taking action on the document after obtaining previous approval under Section 17A of the Prevention of Corruption Act.
He pointed out that “petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the Statute Book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17A but when it comes to the relief sought in the Writ Petition, there was no relief claimed in this behalf.” Justice Kaul, writing for himself and CJI Gogoi, said “insofar as the decision-making process is concerned, on the basis of certain documents obtained, the petitioners sought to contend that there was contradictory material. We, however, found that there were undoubtedly opinions expressed in the course of the decision-making process, which may be different from the decision taken, but then any decision-making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it”.
The judges said “in this context reference was made to (a) Acceptance of Necessity (‘AON’) granted by the Defence Acquisition Council (‘DAC’) not being available prior to the contract which would have determined the necessity and quantity of aircraft; (b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure (‘DPP’); (c) the oversight of objections of three expert members of the Indian Negotiating Team (‘INT’) regarding certain increase in the benchmark price; and (d) the induction of Reliance Aerostructure Limited (‘RAL’) as an offset partner”.
The judges said “it does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision-making process”.
On the contention that some of the documents were not available with the petitioner at the time of the decision and had later come to them by “sourcing”, CJI Gogoi and Justice Kaul said “we decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters”.
They pointed out that the court had already said there cannot be any uniform standard of judicial review in such matters.
“We cannot lose sight of the fact that we are dealing with a contract for aircraft, which was pending before different Governments for quite some time and the necessity for those aircraft has never been in dispute. We had, thus, concluded… noticing that other than the aforesaid three aspects (decision-making process, pricing and offsets), that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry,” they said.
The judges said one of the review petitions had said that the prayer for registration of an FIR and investigation by CBI “has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts”.
Rejecting this, the two judges said “we do not consider this to be a fair submission for the reason that all counsel, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of FIR and further investigation, but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for”.
The judges said the court had “satisfied itself” on the question of pricing with the material made available.
“It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. On the perusal of documents, we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities,” the two judges said.
The court was also seized of a review petition by Aam Admi Party MP Sanjay Singh. The review petitions had said that the court, in its earlier judgement, had misconstrued that all Reliance Industries were of one group. On this, the judges said “that may be so, but in our observation this aspect was referred to in a generic sense, more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it”.
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