Top court rejects plea for FIR and further probe into aspects of pricing

In a major relief to the ruling regime and a big setback to the Opposition, the Supreme Court on Thursday once again gave a clean chit to the Modi Government in the purchase of 36 fully-loaded Rafale fighter jets from French company Dassault Aviation, rejecting the plea for registration of an FIR and a further probe into the matter.

While unanimously dismissing the pleas seeking review of the December 14, 2018, verdict in which it had said that there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets, the SC also refused to re-examine the aspects of pricing, decision making process and selection of the offset partner in the deal.

“This court did not consider it appropriate to embark on a roving and fishing enquiry,” a Bench headed by Chief Justice Ranjan Gogoi and comprising Justices SK Kaul and KM Joseph said.

The apex court was not satisfied with the submission that it decided the disputed questions of facts in the Rs 59,000-crore deal “prematurely” without investigation. However, Justice Joseph, in a separate judgment, said, “Petitioners can approach the CBI for registering an FIR provided the CBI gets nod from the Government as per the Prevention of Corruption Law.”

“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,” said the Bench.

The review applications cannot be entertained unless there is an “error apparent on the face of the record”, the apex court said.

The Bench said it cannot lose sight of the fact that it is 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 were, however, cautious to note that this was in the context of the writ petition filed under Article 32 of the Constitution of India, the jurisdiction invoked,” said the Bench.

The petition seeking re-examination of the December 14, 2018, verdict was filed by former Union Ministers Yashwant Sinha, Arun

Shourie and activist lawyer Prashant Bhushan. Other review petitions were filed by lawyer Vineet Dhandha and Aam Aadmi Party lawmaker Sanjay Singh.

The Bench said it appears that the petitioners construed themselves as an appellate authority to determine each aspect of the contract and involve the SC to do the same.

While dealing with the allegation of irregularities on the pricing of the jets, the top court said that it satisfied itself with the material made available and it is not the function of this court to determine the prices and act on mere “suspicion” of certain persons.

“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 Bench said.

With regard to the decision making process, the apex court said the petitioners contended there was contradictory material on the basis of certain documents obtained. “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.

“In this context reference was made to (a) Acceptance of Necessity granted by Defence Acquisition Council not being available prior to contract which would have determined necessity and quantity of aircrafts; (b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure; (c) oversight of objections of three expert members of Indian Negotiating Team regarding certain increase in benchmark price; and (d) induction of Reliance Aerostructure Limited as an offset partner,” the apex court said.