by Dr Jaipal Singh

There is a popular proverb “A liar has no legs to stand upon” which essentially implies that the falsehood cannot stand truth for long but what if it has wings instead because then it is far more swift and versatile to escalate untruth and disinformation over a large area and population without constraints of time and space.

This appears to be absolutely true in the context of the current Indian politics and some politicians. Based on a few half-baked stories in some Indian magazines is far, well known for their anti-government reporting, the top a large the Indian National Congress had started a systematic campaign personally against the Indian Prime Minister Narendra Modi and his government more than a year back making allegations of corrupt practices in the Rafale Fighter jets deal signed with the French government in September 2016. After taking its toll in the recent assembly elections in few states, this campaign reached an anticlimax on 14 December 2018 when the Supreme Court of India in a landmark Judgement cleared the “Rafale Deal” of all charges.

The principal political party in opposition, in a big hurry to get back its lost fiefdom and electorate, resorted to trading charges and allegations in the Rafale deal concluded in September 2016 at the inter-governmental level personally against the prime minister over a year back despite the latter’s unblemished record of personal integrity and fiscal discipline in his long political career as the Chief Minister of Gujarat and, now, as the Prime Minister at the Centre. Emboldened with the success of the fake news and disinformation at the crucial election time, a fresh barrage of allegations has, however, been levied by the opposition party President despite the clean chit given by the 3-judges bench headed by the Chief Justice of India (CJI).

Attempts were also made by the principal opposition and Modi-baiters to derive a parallel between the Bofors Scam of late nineteen-eighties and the current Rafale deal though the main difference remains that the former scam was unearthed by the then ruling Congress Defence Minister Vishwanath Pratap Singh, a man of known honesty and integrity, who was later discredited from the party as punishment for exposing the scam, while the alleged Rafale scam is the product of the fertile minds and wishful imagination of some detractors and the main opposition party out to derive political mileage during the crucial election time taking advantage of the vicious reporting of some anti-government elements in the electronic and print media.

When the allegations of corruption were levied in 2017 against the inter-governmental Rafale deal of 2016 for the supply of 36 fighter aircraft to meet the urgent operational requirements of the Indian Air Force, in terms of over-pricing, procedural violations, technology and commercial favouritism (cronyism), several blogs and articles came in media and press in favour and against the deal perplexing the psyche of the large Indian populace for months together. With a view to find truth, this author too made an in-depth study and analysis of all related issues and contributed a comprehensive article on the subject in August 2018. The author now notes with satisfaction that the judgement delivered on 14 December by the Supreme Court has vindicated the analysis and inferences drawn by him earlier.

Writ Petitions And Verdict

The principal opposition party on many occasions in the past disrupted parliamentary proceedings to demand a Joint Parliamentary Committee (JPC) to probe the Rafale deal besides also making noise for the CBI investigation. As the move lacked any material evidence or lead justifying such probe, the joint attempts of detractors and opposition party were not successful. Consequently, four writ petitions were filed in the Supreme Court a few months back by different people in the form of the public interest litigation (PILs). The Apex court has recorded in their judgement that these petitions were examined by them under the Article 32 of Constitution which provides the right to citizens to move the Court for the Constitutional remedies provided under the fundamental rights.

The first petition was filed by one ML Sharma, an independent lawyer, a compulsive petitioner and ill-famed defence counsel of the accused in the famous 2012 Nirbhaya Gang Rape case, seeking appointment of a Special Investigation Team (SIT) monitored by the Supreme Court and quashing the Inter-Governmental Agreement of 2016 for the purchase of 36 Rafale Jets. The second petition was filed by one Vineet Dhanda, claiming to be a public spirited man, allegedly based on the newspaper article/reports. The third petition related to Sanjay Singh, Member of Parliament, mainly alleging illegality and lack of transparency in procurement. The fourth petition was filed by two disgruntled veteran politicians and a compulsive lawyer-cum-activist again claiming to be “public spirited Indians” aggrieved by non-registration of FIR by the CBI pursuant to a complaint made by them. This author has consciously used the term ‘compulsive’ because the gentlemen are known for frequently resorting to filing PILs in courts mostly on charges found not sustainable in judicial review.

While the bonafides of the third and fourth petitioners and their political background is well known, the first two claim to be independent spirited men but it is well known fact in the Indian politics how the political parties move courts by “proxy petitioners” without identifying themselves as party. It offers them the comfort and liberty to later refute or register disagreement with the outcome of the judicial review. The Apex Court after hearing the petitioners and government reply including the price details of the fighter jet given in a sealed cover delivered their judgement on 14 December 2018. Briefly, the judgement says that the Court has not found any reason to doubt the procurement process, there is no need to probe the pricing of the deal, no commercial favouritism has been made by the government to any party, the necessity and quality of the fighter aircraft is beyond doubt and the Indian Air Force cannot afford to be unprepared in the prevailing security scenario in the sub-continent. Besides, the Court has categorically used rather harsh words against the petitioners by recording that the “perception of individuals cannot be basis of fishing and roving inquiry”. The last para 34 of the judgement reads as under:

“In view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”

Scope And Extent of The Judicial Review

In their judicial review, the Apex Court has examined the whole issue from the points of view of the decision making process to look into the compliance of the laid down procedure, pricing details of the aircraft in the light of the claims/allegations of over-pricing of the deal and offset issues to see if any commercial favouritism has been done in the process. In addition, the Apex Court has also commented on the need and quality of the fighter aircraft. Incidentally, these issues were also examined by the author in his article “Indian Rafale Deal: Ignorance is Bliss!” in August 2018.

(1) Decision Making Process

In their twenty-nine page judgement para 16 to 23, the apex court has examined the decision making process of the Government of India in the context of the Rafale deal. The judgement has quoted important provisions of the Defence Procurement Procedure (DPP) 2002 as revised from time to time, various milestones during the procurement, the reasons why the earlier process was deadlocked,10 April 2015 joint statement of the Indian Prime Minister and French President regarding purchase of 36 Rafales in fly-away condition and subsequent procedural milestones including the approvals of the Defence Acquisition Council (DAC) and Cabinet Committee on Security (CCS). The Court has not found any flaw in the decision making process as against the repeated allegation by the leaders of the Congress party in the press and public forums that even the Defence Minister was kept in dark and the decision was solely taken by Prime Minister Modi.

Two points included in the judgement as the main reasons for the deadlock with the Dassault Aviation were: i) Man-hours that would be required to produce the aircraft in India: HAL required 2.7 times higher Man-hours compared to the French side for the manufacture of Rafale aircraft in India; and ii) Dassault Aviation as the seller was required to undertake necessary contractual obligation for 126 aircraft (18 direct fly-away and 108 aircraft manufactured in India) as per RFP requirements. Issues related to contractual obligation and responsibility for 108 aircraft manufactured in India could not be resolved.

Apart from examining the process, the Court had also interacted with the senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. The Court recorded their satisfaction that there was no occasion to 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 23 of the judgement reads as under:

“We may also note that the process was concluded for 36 Rafale fighter jet aircraft on 23rd September, 2016. Nothing was called into question, then. It is only taking advantage of the statement by the ex President of France, Francois Hollande that these set of petitions have been filed, not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decision making process and pricing. We do not consider it necessary to dwell further into this issue or to seek clause by clause compliance.”

It may be relevant to mention here that the ex-President of France had made statement to a prodding journalist in a different context involving some conflict of interests and then he had quickly retracted from his statement too. The issue has time and again been clarified by the Dassault Aviation and French government that the OEM had complete liberty in selection of offset partners without pressure from any side. It is well known that French Dassault was in touch with Indian Reliance Company since 2012. Needless to add that the step by step development of the procurement process since June 2001, points on which the deal was stuck up, the initiative taken by the Indian Prime Minister at the request of Air Force in April 2015 and subsequent signing of the inter-governmental agreement in September 2016 after following the due procedure was detailed by this author too in his August 2018 article. Following two paragraphs are relevant from the section “MMRCA – A Synopsis” of the ibid article.