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Sunday, December 05, 2021

Across the Aisle: Rafale verdict and the unavoidable option

In case of Manohar Lal Sharma vs Narendra Damodardas Modi and other cases (Rafale deal cases) the judgment of the Supreme Court pronounced on December 14, 2018, will be remembered more for the questions that the Court did not decide than for the questions that were decided.

Written by P Chidambaram |
Updated: December 23, 2018 12:05:37 am
Across the Aisle: Rafale verdict and the unavoidable option, narendra modi After misleading the Court, the government has conveniently blamed the Court for ‘misinterpreting’ its note! The government has also given lessons in English grammar to the Court! Those are the perils of adopting the ‘sealed cover’ approach. (Source: PIB Photo via PTI)

A judgment is an authority for what it decides — the ratio — and not for what may logically follow from the decision. That’s a settled principle of law.

In the case of Manohar Lal Sharma vs Narendra Damodardas Modi and other cases (the Rafale deal cases) the judgment of the Supreme Court pronounced on December 14, 2018, will be remembered more for the questions that the Court did not decide than for the questions that were decided.

The Court’s approach was pretty simple and straightforward: there are severe limits to the Court’s jurisdiction while examining a case of defence procurement. Lest the point was lost on the average reader, the Court concluded the judgment with the following words: “We however make it clear that our views as above are primarily from the standpoint of the exercise of jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”

Limits of Jurisdiction

The lesson is clear: the petitioners erred in invoking the jurisdiction of the Supreme Court under Article 32 of the Constitution. Practically every conclusion declining to examine or decide the key issues in dispute followed from the conclusion regarding the jurisdictional limits of the Court.

“It was also made clear that the issue of pricing or matters relating to technical suitability of the equipment would not be gone into by the Court.” (Para 12.)

“We are satisfied that 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.” (Para 22.)

“We cannot sit in judgement over the wisdom of deciding to go in for purchase of 36 aircraft in place of 126.” (Para 22.)

“It is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present.” (Para 26.)

“…it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not.” (Para 33.)

Precisely for the reasons given by the Supreme Court, the Court ought to have, at the threshold, declined to entertain the petitions.

Dubious Claims/Statements

There is another aspect of the judgment that is unusual. The Court seems to have ‘accepted’ whatever the government had stated either in the note in the sealed cover or in the oral arguments. Sample the following: that withdrawal of the original RFP (request for proposal) was initiated in March 2015; that the contract negotiations between Dassault and Hindustan Aeronautics Ltd (HAL) could not be concluded on account of unresolved issues; that the Indian Negotiating Team had arrived at better terms relating to price, delivery and maintenance; the processes have been followed; a redacted version of the CAG’s report was placed before Parliament and the report of the CAG has been examined by the PAC; the Chief of Air Staff communicated his reservation regarding the disclosure of the pricing details; the pricing details are covered by Article 10 of the IGA (Inter-Governmental Agreement) between the two governments; there is a commercial advantage in the purchase of 36 Rafale aircraft; there were certain better terms in IGA qua maintenance and weapon package; Dassault was circumspect about HAL carrying out the contractual obligations; Dassault has signed partnership agreements with several companies and is negotiating with over hundred; there was possibly an agreement between the parent Reliance company and Dassault starting from the year 2012; and there has been a categorical denial from every side of the interview given by the former president of France, Mr Francois Hollande. None of these statements/ claims is entirely true and the Court, owing to its limited jurisdiction, did not examine their veracity. So, who can? The obvious answer is that only a parliamentary inquiry will expose the falsity of the statements/ claims and bring out the truth.

The forbearance shown by the Court has led the Court to commit an egregious error. There is no report of the CAG yet; no version of the report, redacted or otherwise, has been placed before Parliament; and the report has not been shared with or examined by the PAC. After misleading the Court, the government has conveniently blamed the Court for ‘misinterpreting’ its note! The government has also given lessons in English grammar to the Court! Those are the perils of adopting the ‘sealed cover’ approach.

Unanswered Questions

There are at least three big questions that can only be answered by a parliamentary inquiry.

-Why did the government scrap the transfer of technology agreement and work share agreement (March 13, 2014) between Dassault and HAL when 95 per cent of the negotiations had been completed between the two (Dassault CEO, March 28, 2015, and Foreign Secretary, April 8, 2015)?

-If the new price is cheaper by 9 to 20 per cent, why did the government not buy the 126 aircraft offered by Dassault, since the Air Force desperately needs to augment its fleet of fighter aircraft?

-Why did the government not push the case of HAL, the only company that has manufactured aircraft in India, for the whole or part of the Offset contracts?

Notwithstanding the judgment of the Supreme Court, there are unverified claims and unanswered questions. The judgment has, by default, made a parliamentary inquiry unavoidable. Over to the people’s court.

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