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SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
Manohar Lal Sharma - Petitioner
Versus
Narendra Damodardas Modi & Ors. - Respondents
Writ Petition [Criminal] No. 225 of 2018 With W.P. (c) No. 1205 of 2018; W.P. (Crl) Nos. 297 & 298 of 2018
Decided On : 14-12-2018
(2007) 14 SCC 517; (2014) 3 SCC 760; (1994) 6 SCC 651; (2008) 16 SCC 215; (2006) 10 SCC 1 – Relied upon
(b) Defence procurement – Rafale Fighter Jets – Petitioners not questioning suitability of the fighter jets – Only decision-making process and price/cost is challenged – Indian Offset Partner – DPP 2002 reviewed in 2005, 2006, 2008, 2011, 2013 and 2016 – DPP 2013 applicable for RFP issued after 1st June 2013 – Instantly RFP issued much before 1st June 2013 – Providing for approval of any deviation by DAC – Further providing that DPP 2013 may be deviated from in case of procurement from friendly foreign countries, likely to give geostrategic advantages to the country – To be based on mutually agreed provisions by the Governments of both the countries based on an IGA – Defence Offset Guidelines of 2013 giving free hand to vendor/Original Equipment Manufacturer to select its IOPs – After withdrawal of earlier RFP, transaction concluded in March 2015 following steps as per DPP 2013. (Para 13, 17, 19)
(c) Defence procurement – 126 Rafale Fighter Jets – RFP issued before 2013 – Withdrawn due to HAL requiring much higher man-hours and non-resolution of contractual obligation by Dassault Aviation resulting in cost escalation influenced by rupee exchange rate. (Para 18, 19)
(d) Defence procurement – Withdrawal of RFP for 126 fighter jets and negotiating for 36 aircrafts – Earlier negotiation not concluding – Country could not wait – Court cannot sit appeal on wisdom of Government in such matters. (Para 22)
(e) Defence procurement – Rafale Aircrafts – Pricing – CAG examining the matter and its report submitted to Public accounts Committee of Parliament – Not for the Court to carry out a comparison of the pricing details in matters like the present. (Para 25, 26)
Facts of the case:
The issues arising in this group of writ petitions, filed as Public Interest Litigations, relate to procurement of 36 Rafale Fighter Jets for the Indian Air Force.
Writ Petition (Criminal) No.225 of 2018 has been filed by one Shri Manohar Lal Sharma, a practicing lawyer of this Court. What is sought for in the said writ petition is registration of an FIR under relevant provisions of the Indian Penal Code, 1860 and a Court Monitored Investigation. The further relief of quashing the Inter-Governmental Agreement of 2016 for purchase of 36 Rafale Jets has also been prayed for.
Writ Petition (Civil) No.1205 of 2018 has been filed by one Shri Vineet Dhanda claiming to be a public spirited Indian. The petitioner states that he was inspired to file the writ petition being agitated over the matter on the basis of the newspaper articles/reports.
The third writ petition bearing Writ Petition (Criminal) No.297 of 2018 has been filed by one Shri Sanjay Singh, a Member of Parliament alleging illegality and non-transparency in the procurement process. The said writ petition seeks investigation into the reasons for “cancellation of earlier deal” and seeks a scrutiny of the Court into the alteration of pricing and, above all, how a ‘novice’ company i.e. Reliance Defence came to replace the HAL as the Offset partner. Cancellation of Inter-Governmental Agreement and registration of an FIR has also been prayed for.
The fourth and the last writ petition bearing Writ Petition (Criminal) No.298 of 2018 has been filed by Shri Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan claiming to be public spirited Indians. They are aggrieved by non-registration of FIR by the CBI pursuant to a complaint made by them on 4th October, 2018 which complaint, according to the petitioners, disclose a prima facie evidence of commission of a cognizable offence under the provisions of the Prevention of Corruption Act, 1988. The prayer, inter alia, made is for direction for registration of an FIR and investigation of the same and submitting periodic status reports to the Court.
Finding of the Court:
There is no procedural infirmity in the procurement.
Result: Petitions dismissed
JUDGMENT :
Ranjan Gogoi, CJI.
1. The issues arising in this group of writ petitions, filed as Public Interest Litigations, relate to procurement of 36 Rafale Fighter Jets for the Indian Airforce. The procurement in question, which has been sought to be challenged, has its origins in the post-Kargil experience that saw a renewed attempt to advance the strategic needs of the armed forces of the country.
2. As far back as in the month of June of the year 2001, an in principle approval was granted for procurement of 126 fighter-jets to augment the strength of the Indian Airforce. Simultaneously, a more transparent Defence Procurement Procedure (“DPP”) was formulated for the first time in the year 2002. A robust ‘offset clause’ was included in the DPP in the year 2005 so as to promote Indigenisation and to that effect Services Qualitative Requirements (“SQRs”) were prepared in June 2006. On 29th June 2007 the Defence Acquisition Council (“DAC”) granted the “Acceptance of Necessity” for the procurement of 126 Medium Multi Role Combat Aircrafts (for short “MMRCA”) including 18 direct flyaway aircrafts (equivalent to a single squadron) to be procured from the Original Equipment Manufacturer (“OEM”) with the remaining 108 aircrafts to be manufactured by Hindustan Aeronautics Limited (for short “HAL”) under licence, to be delivered over a period of 11 years from the date of signing. The bidding process commenced in August 2007. Six (06) vendors submitted proposals in April, 2008. The proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. All these were completed in the year 2011. The commercial bids were opened in November, 2011 and M/s Dassault Aviation (hereinafter referred to as “Dassault”) was placed as the LI sometime in January 2012. Negotiations commenced thereafter and continued but without any final result. In the meantime, there was a change of political dispensation at the centre sometime in the middle of the year 2014.
3. According to the official respondents negotiation continued. A process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015. On 10th April, 2015 an Indo-French joint statement, for acquisition of 36 Rafale Jets in flyaway condition through an Inter-Governmental Agreement (hereinafter referred to as “IGA”), was issued and the same was duly approved by the DAC. The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015. Negotiations were carried out and the process was completed after Inter-Ministerial Consultations with the approval of the Cabinet Committee on Security (for short “CCS”). The contract along with 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 aircrafts were scheduled to be delivered in phased manner commencing from October 2019.
4. Things remained quiet until sometime in the month of September, 2018 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 in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India. This seems to have triggered of the writ petitions under consideration.
The first writ petition i.e. Writ Petition (Criminal) No.225 of 2018 has been filed by one Shri Manohar Lal Sharma, a practicing lawyer of this Court. What is sought for in the said writ petition is registration of an FIR under relevant provisions of the Indian Penal Code, 1860 and a Court Monitored Investigation. The further relief of quashing the Inter-Governmental Agreement of 2016 for purchase of 36 Rafale Jets has also been prayed for.
Writ Petition (Civil) No.1205 of 2018 has been filed by one Shri Vineet Dhanda claiming to be a public spirited Indi
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