RAFALE CASE ANALYSIS (MANOHAR LAL SHARMA V. NARENDRA DAMODARDAS MODI)

Authors:

Purbasha Mukherjee, Jogesh Chandra Chaudhuri Law College, Calcutta University

Deepak Yadav, LAW CENTRE- II, Faculty of Law, University of Delhi


Editor:

Varun Hinge, Institute of Law, Nirma University

INTRODUCTION

On 14th December 2018, the Supreme Court held that there won’t be an investigation of the Rafale fighter jets bought by the present Government and this took the political world by a storm. The fighter jet deal had become a major political issue during the Lok Sabha election campaign where Rahul Gandhi, the congress leader, bluntly accused the Prime Minister of the country of corruption and for favouring and working for industrialist Anil Ambani in the deal. He used the phrase ‘chowkidar chor hai’, which means that the watchman is a thief, to accuse Modi because the Prime Minister considers himself as the Watchman of the Country.

The Chief Justice of India, Ranjan Gogoi, along with other judges heard the petitioners. It stated that the Court agreed to hear the petitions because the defendants argued that the deal suffered from procedural irregularities and was wrongful and corrupt deal. The Court also stressed on the fact that any investigation of the rafale jet deal could have serious consequence on the national security because the deal involved the French Government as well. The Supreme Court, later, received the petitions on review of Rafale jet deal which was challenging its 2018 judgement because the petitioners argued that the judgement relied upon incorrect claims by the government ‘in an unsigned note given in a sealed cover’. However, the Court dismissed the petitions saying they lacked any merit. CJI upheld the earlier judgement and emphasised that judicial review of a particular case usually depends on the subject matter and in this case the Court's limit of the judicial survey was restricted to assessing only if the government acted illegally because the deal was sensitive and vital for India’s national security.

The review petitions for the case were filed by advocate Prashant Bhushan, former Union ministers Yashwant Sinha and Arun Shourie and few others after some leading newspapers published several revelations and questioned the involvement of some high profile industrialists of the Country in the deal and The Hindu, a leading newspaper, said that the claims they made were based on a conflicting note that was written by three senior defence ministry officials who were a part of the negotiating team of the rafale jets. Among several reports on this issue, one of the articles mentioned that the Ministry of Defence needed to do ‘parallel negotiations’[1] which was headed by the Prime Minister of India’s Office with France for the fighter jets and claimed that the terms of negotiations were not as good as the terms put forward by the opposition party, the Congress.

BACKGROUND OF THE CASE

The timeline of the case can be dated back to 2007 when the Ministry of Defence issued tenders for the purchase of 126 fighter aircrafts among which 108 was to be manufactured in India by Hindustan Aeronautics Limited (HAL) and the rest 18 jets were to be purchased from abroad and the French company Dassault was selected for that. Later, in 2015, march, the Prime Minister announced a new deal along with the President of France and notified that the earlier tender for 126 aircrafts had been nullified and the new deal involved the purchase of only 36 Rafale fighter aircrafts and that included two more foreign companies, Thales and Safran, along with Dassault to invest 50% of the contract value back through the purchase of Indian goods and services. However, in 2016, a joint venture was announced by Dassault and Anil Ambani's Reliance Group- Dassault Reliance Aerospace Ltd (DRAL) and it was specified that they intended to invest $115 million for the manufacture of the fighter jets.

The whole situation raised several questions and became a political controversy when, in 2018, a petition was filed in the Apex Court claiming that the Rafale Fighter Jet Deal had serious procedural deformities and highlighted a few concerns[2]-

  • Did Prime Minister make the decision without the Cabinet Committees approval just to go ahead with the deal?

  • Why was the Hindustan Aeronautics Limited (HAL) removed surreptitiously from the position of India’s offset partner and Reliance Defence was made Dassault Aviation's Indian Offset Partner and was this approved by the Minister of Defence according to the guidelines?

  • If the fighter jet deal is an inter-governmental deal than does that allow the Central government to go ahead with the deal even if it violates the Comptroller and Auditor General's Act?

  • Does the deal suffer from pricing deformity because there is a huge difference in the prices of the jets decided in the second deal from the first?

However, on 14th December, 2018, the Court dismissed the pleas and said that it did not find any issues with any of the raised concerns. In 2019, the Court agreed to hear the filed review pleas which was challenging the 2018 judgement saying it was based on incorrect claims made by the government but on 14th November, 2019, the Court dismissed the petition saying it had limited powers of scrutinizing the defence’s contracts under its Article 32 of the jurisdiction because it involves national security of the Country

CASE ANALYSIS

A three-judges bench led by CJI Ranjan Gogoi, in a unanimous verdict, concluded that probing an investigation or making an enquiry committee to look over the matter is not within the scope of judicial review.[3] Justice Sanjay Kishan Kaul, the second judge, said that the Court cannot forget that the dealing for these fighter aircrafts was pending for a long time and the fact that the necessity of these aircrafts cannot be argued upon, it is not appropriate to start an enquiry on the matter. Justice Joseph, the third judge, continued, after congress’ attempt to argue that the aircraft deal was a scam and the setting up of a joint parliamentary committee is important, that the judgement would not impact any independent inquiry into the allegations of corruption that was brought in front of the Court on the Rafale deal.

The Apex Court, further, closed a criminal contempt petition filed against Rahul Gandhi for wrongly using the phrase ‘chowkidar chor hai’ against the Prime Minister and asked him to be more careful in the future because a political leader of his stature should always be cautious with what they say.

OFFSET PARTNER

The court, while rejecting the plea to look over the entire matter on the basis of new acquired informations, also stated that the term ‘Reliance Industries’ was used in as a inclusive term while discussing the offset partners for the Rafale deal and the fact that the leading government used Anil Ambani’s company by using the name of his elder brother Mukesh Ambani was a misinterpreted fact[4].

PRICING ISSUE

The court rejected the allegations on the pricing of the rafale jets and said that it declines to start analysing and scrutinizing each clause and each opinion that comes its way. It further delved into the matter and noted that it was not the function of the court to determine the prices just because of some suspicions and thus, it should be left with the competent authority to analyse the issue[5].

CONCLUSION

Need of the hour is a transparent mechanism to overcome the nepotism in the external affairs as there have been many instances like Rafale deal such as Colombo box terminal in which a trilateral agreement between Japan, India and Srilanka was signed to build a port in Colombo and it was agreed that a tender will be issued for the company who will represent India for construction in Colombo but the situation changed and a direct entry of Adani Group took place without any formal invitation which held that the Governmental favors to the Industrialists is becoming a huge problem for developing Nations such as India and also it diminishes the goodwill of the country. Also, with the way the Apex Court of the Country handles such situation or rather dodges them and moves forward, will such issue ever be solved or ultimately lead the Country to its doom stays as the greatest question.

[1] Rafale case: SC rejects review pleas for lack of merit, again dismisses plea for CBI inquiry, Scroll.in ( 3rd Nov, 2020), /https://scroll.in/latest/943639/rafale-review-petitions-supreme-court-dismisses-need-of-cbi-inquiry-into-defence-deal-again [2] Rafale Fighter Jet Deal, Supreme court observer, https://www.scobserver.in/court-case/rafale-fighter-jet-deal [3] Japnam verma, Gyan Sharma, Rafale Verdict: Supreme Court dismisses all review petition in fighter jet deal case, Mint (Nov 14, 2019), \https://www.livemint.com/news/india/rafale-verdict-supreme-court-dismisses-all-review-petitions-in-fighter-jet-deal-11573709613380.html [4] Krishnadas Rajgopal, Supreme Court dismisses pleas to review Rafale ruling, raps Rahul Gandhi, The Hindu (Nov 14, 2019, New Delhi) ,/https://www.thehindu.com/news/national/supreme-court-dismisses-petitions-seeking-review-of-its-judgment-upholding-purchase-of-36-rafale-jets/article29970248.ece [5] Krishnadas Rajgopal, supra note 1

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