It also closed a contempt case filed against Congress leader Rahul Gandhi, who had incurred the court’s wrath over allegedly attributing his chowkidar chor hai remarks to the court. Though Gandhi later claimed that the remarks were made in the thick of campaigning and apologised for it, the bench was yet to formally let him off on contempt charges. Today, it formally did with a warming to him to be more careful in the future.
Contempt of court involves a six-month jail term. The court had in 2018 cited the inherent limitations on its power to undertake a judicial review of “sensitive” defence contracts and its lack of expertise in scrutinising pricing or technical feasibility to refuse a probe.
The move had been hailed by the government but roundly criticised by critics. A review of the ruling had been sought among others by the likes of former ministers Yashwant Sinha and Arun Shourie. A bench led by outgoing Chief Justice Ranjan Gogoi dismissed their pleas for a review.
“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,” the bench had then said.
“We find no reason for any intervention on the sensitive issue of purchase of 36 defence aircraft…. Perception of individuals cannot be the basis of a fishing and roving enquiry by this court, especially in such matters.”
Sinha and Shourie, through activist lawyer Prashant Bhushan, had alleged that the government had pulled the plug on a 2001 deal to buy 126 jets at a lower price only to conclude a fresh deal in 2015 to buy 36 jets at a higher price.
The government disputed this claim, saying the cost escalation was on account of add-ons in terms of avionics and armaments.
They had alleged a conspiracy at the highest level to defraud the exchequer and favour the Anil Ambani group chosen as offset partner by French aviation company Dassault which makes the Rafale.
Congress President Rahul Gandhi had made the Rafale deal his main point of attack related to corruption against Prime Minister Narendra Modi and the Bharatiya Janata Party ahead of the recent assembly polls which saw the Congress beating its rival in three states.
The other members of the bench, justices Sanjay Kishan Kaul and KM Joseph, had concurred with the CJI. The court rejected all objections to three aspects of the deal — decision-making, prices and the India offset partner.
It also rejected a plea that the inter-government agreement (IGA) had been invoked out of turn. The court said that it was informed that joint exercises had taken place, and that there was a financial advantage to the nation. The court said defence procurement contracts should be subject to a different degree of scrutiny.
The processes have been broadly followed, it said. “The need for the aircraft is not in doubt,” it said. “The quality of the aircraft is not in question.”
Long-drawn negotiations for the procurement of 126 jets had not produced any result. Besides, the court noted that it cannot sit in judgment over the wisdom of deciding to go in for the purchase of 36 aircraft in place of 126.
“We cannot possibly compel the government to go in for purchase of 126 aircraft,” it said.
“Our country cannot afford to be unprepared/underprepared in a situation where our adversaries… have acquired not only fourth generation, but even fifth generation aircrafts, of which we have none. It will not be correct to sit as an appellate authority to scrutinise each aspect of the process of acquisition.”
The court said that it had “examined closely the price details and comparison of prices of the basic aircraft along with escalation costs as under the original RFP (request for proposal) as well as under the IGA. We have also gone through the explanatory note on the costing, item wise.”
The government, the court noted, claimed that there was a commercial advantage in the purchase of 36 Rafale aircrafts apart from a better maintenance and weapon package. “It is certainly not the job of this court to carry out a comparison of the pricing details in matters like the present,” it said.
On the choice of the Indian offset partner, which triggered the litigation, the court said that the ‘Clarification on Offset Policy’, posted on September 22 makes it clear that the government has no role in it. “Such matter is seemingly left to the commercial decision of Dassault,” the bench said.
As for the role of Hindustan Aeronautics Ltd (HAL), the court said that the government had argued that Dassault was “circumspect” about the state-owned company being able to carry out its contractual obligations and this was responsible for the earlier deal not being wrapped up.
“Once again, it is neither appropriate nor within the experience of this court to step into this arena of what is technically feasible or not,” the bench said.