Ayush Abraham John and Jhanvi Singh Sooryavanshi, Nyayshastram
Introduction
In 2018, the Supreme Court in a judgement presided by Justice Ranjan Gogoi decided not to order a court-monitored investigation of the Union government’s purchase decision of 36 Rafale fighter aircraft. In 2019, the Supreme Court under the 3 Judge bench of Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K.M. Joseph once again rejected to review its earlier judgment.
In the year 2007, the Ministry of Defence under the then ruling government issued a tender notification for the purchase of 126 fighter aircraft to strengthen its defence forces in concurrence with the defence procurement procedure. The decision envisaged that the ministry of defence would purchase only 18 flyaway aircraft from aboard and the remaining 108 would be manufactured in India by the Hindustan Aeronautics Limited via transfer of technology from any foreign entity deemed fit. After being subject to an extensive selection procedure the then Union government selected a French company Dassault.
In March 2015, the former Prime Minister and President of France announced a new deal for the procurement of 13 Rafale fighter aircraft. The new deal included a 50% offset clause requiring Dassault to invest 50% of the contract value back into India via the purchase of Indian goods and services. In October 2016, Dassault and Anil Ambani Reliance Group announced a joint venture. Following these new developments, multiple litigations were filed implicating the Union Government of grave procedural irregularities.
Background
In the month of June 2001, approval was granted for the procurement of 126 fighter jets to strengthen the Indian Air Force. A transparent Defence Procurement Procedure (“DPP”) had been formulated for the primary time within the year of 2002. An active ‘offset clause’ was included within the DPP in the year 2005, to promote market Indigenization and to that effect, Services Qualitative Requirements (SQRs) were prepared in June 2006. On 29th June 2007, the Defence Acquisition Council (“DAC”) had granted the “Acceptance of Necessity” for the procurement of 126 Medium Multi-Role Combat Aircraft (“MMRCA”) including 18 direct flyaway aircraft (equivalent to a single squadron) to be procured from the Original Equipment Manufacturer (“OEM”) with the remaining 108 aircraft to be manufactured by Hindustan Aeronautics Limited (in short “HAL”) which was to be delivered over a period of 11 years from the date of signing. In August of the year 2007, the bidding process had commenced. On the 3rd of April 2008 proposals were submitted by six vendors. After which these proposals were analyzed by field and technical evaluation, Staff Evaluation Report and a Technical Oversight Committee Report. All the above procedures were completed within the year 2011 after which the commercial bids were opened in November 2011. In January 2012 Dassault Aviation SA (a French Aerospace Company) was the lowest bidder (L1) and the negotiation was initiated and later continued without any final result.
In the middle of the year 2014, there was a change of political leadership at the centre. In March 2015 former Prime Minister of India and the President of France announced a new deal for the purchase of only 36 Rafale Fighter Aircraft and the process of withdrawal of the request for proposal in regard to the 126 MMRCA was initiated. On 10th April 2015 an Indo-French joint statement, for the acquisition of 36 Rafale Jets in the flyaway condition through an Inter-Governmental Agreement (hereinafter referred to as “IGA”), was issued and therefore the same was duly approved by the DAC. The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015. Negotiations were initiated and the process was completed after Inter-Ministerial Consultations with the approval of the Cabinet Committee on Security. The contract alongside the Aircraft Package Supply Protocol; Weapons Package Supply Protocol; Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23rd September 2016. The aircraft was scheduled to be delivered in a phased manner commencing October 2019.
Things were quiet for a month until September 2018 until when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice within the matter of selection of Indian Offset Partners and therefore the Reliance Group was the name suggested by the Government of India. This seemed to have triggered off the writ petitions under consideration.
Analysis
The first writ petition was filed on the basis of the registration of an FIR under the provisions of the Indian Penal Code,1860 and of the Court Monitored Investigation. The relief of quashing the Intergovernmental Agreement of 2016 for the acquisition of 36 Rafale Jets. The second Writ Petition (Civil) No.1205 of 2018 has been filed by one Shri Vineet Dhanda on the basis of the newspaper articles/reports. The third writ was also been filed alleging illegality and non-transparency of the procurement process. This petition seeks investigation for the reason of the cancellation of the deal and also seeks the scrutiny into the alteration of the price and the reason as to how a company like Reliance can replace the HAL as an offset partner. The fourth writ was filed as they were aggrieved by the non-registration of the FIR by the CBI to the complaint been made on the 4th of October 2018 disclosing the prima facie evidence of the cognizable offence which falls under the Prevention of Corruption Act, 1988.
The arguments put forward by the respondents were that the unauthorized removal of the 3 documents from the Indian Defence Ministry which was been used to support the petitioner was violating Sections 3 and 5 of the Official Secrets Act, 1923. Section 3 penalizes the collection or publication of any document that might affect the sovereignty and integrity of India. Section 5 holds any person liable for willfully communicating information that might harm the security or interest of the nation. It was also said that Section 123 of the Indian Evidence Act, 1872 prohibits the process of the disclosure of the unpublished official record relating to any affairs of the nation as evidence but can be done so with permission from the head of the department. It has been argued that the three documents should not be relied on by the Court because they were improperly procured. It was also argued by the respondent that the documents cannot be accessed under the Right to Information Act, 2005 as Section 8 prohibits the disclosure of any information to a citizen which will prejudicially affect the sovereignty and integrity of India unless it is related to the public interest. An argument also arose that certain State actions do not come under the purview of the Judicial review and only lie within the political domain, which is totally similar to the above case as it may be threatening the security of the citizens of India and should be further dismissed on the grounds of the public policy.
The court said that, with approval, that there was no issue regarding the publication of the three documents in ‘The Hindu’ newspaper. With the reference of two cases, the court had highlighted the importance of the need to uphold the free press in the Indian Constitution. It has been emphasized that the importance of newspapers is to
“guard public interest by bringing it to fore the misdeeds, and also the failure of the government. By which the publication of all these documents by the press is in “consonance with the constitutional guarantee of freedom of speech”.
It was noted by the court to pass a prohibitive order on the ground that Congress had not vested any such authority in the executive. Thus, granting such powers would amount to unauthorized judicial law and a violation of the separation of powers. The court also stated that neither the Official Secrets Act, 1923, nor any other statute enacted by Parliament, vested power in the executive to “restrain the publication of documents marked as secret or from placing such documents before a Court of Law.” Therefore, the right to publication of all these documents is considered to be within the constitutional guarantee of freedom of speech.
The Court rejected the Respondent’s argument that Section 123 of the 1872 Act bars the disclosure of the three documents as they are unpublished public records. Rather it was noted that the documents had already been published in multiple editions of ‘The Hindu’ newspaper. Referring to the case of S.P. Gupta vs. Union of India[1], the Court recognized that Section 123 decisions must be judged on the basis of public interest. It was noticed that all the documents were already in the public domain accessible to the entire population. Court held that the
“test of admissibility of evidence lies in its relevance unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.”
Conclusion
It is a matter of concern that the Supreme Court gave a clean chit to Union Government over the Rafale deal without going into the details of transactions made in this deal over the past 12 years involving different governments at the helm of political affairs.
The new deal for the procurement of 13 Rafale fighter aircraft. The new deal included a 50% offset clause requiring Dassault to invest 50% of the contract value back into India via the purchase of Indian goods and services. According to this new deal, how did a reliance firm come into the picture of a defence deal without any prior experience or expertise in Defense-related matters?
The Supreme Court dismissed the plea for a court-monitored investigation. However, CAG could have been requested to do the audit into this deal and present to the parliament the findings. This would help the entire public being fully aware of a deal that was entered to purely safeguard the defence interest of the country.
[1] AIR 1982 SC 149.