Supreme Court’s Decision on Rafale Deal Defies Logic


One would wish that even if the court were to dismiss the request by the petitioners for investigation by the apex investigative agency (on Rafale), the court had recommended probe by a joint parliamentary committee, instead of giving a clean chit to the government.

SAFI H. JANNATY | Caravan Daily

SIMPLY speaking, the much-awaited judgment by the Supreme Court of India on public interest petitions related to Rafale Deal defies logic and reasoning. One would wonder what had stopped the apex court to straightaway dismiss the petitions by stating that most of the issues raised by the petitioners fell outside the domain of the court and hence it did not deem fit to interfere.

Instead, the court took shield in the rhetoric of national security, national interest, and nation’s preparedness while pronouncing its judgment. Satisfaction of court’s conscience was said to be the primary reason for deliberating on the matter instead of just dismissing the issue of pricing. A cursory reading would suggest that on almost all the issues the court had pondered, it rested its arguments around the assertions made by the prime minister’s office and others who were asked to respond by the court. The court’s reliance on statements by respondents and especially when the needle of suspicion was directed against them and given the fact that the parties were not afforded an opportunity to cross examine is not very well understood.

Legally speaking, it is not clear as to why the court did not deem right to underscore the grounds on which it could not force the Central Bureau of Investigation (CBI) to entertain requests by several petitioners including that of own Yashwant Sinha, Arun Shoruie and Prashant Bhushan, all renowned personalities in their spheres. In short, the court has seemingly overlooked the conflict between the CBI and petitioners; nor did it seem to have summoned the CBI directing it to enlighten the court as to why the agency declined requests by the petitioners to register an FIR on Rafale Deal.

A detailed reading of the judgment reflects a sense of emptiness and redundancy in the judgment. No wonder, it has committed a factual error by stating that the report of the Comptroller and Auditor General was examined by the Public Accounts Committee (PAC) which the Congress party was quick to pick up and forced the embarrassed government to request the court to rectify.  Here too, the court could have asked the Comptroller and Auditor General to testify before the court to ascertain the veracity of government’s statement which the court had just cited.

The judgment makes one believe that the controversy had started only recently after appearance of statement by ex-president of France, Francois Hollande in September 2018. It is difficult to fathom the need for such a superfluous statement in the judgment. The issue related to cancellation of deal for 126 Rafale aircraft that envisaged transfer of technology was questioned by several defence experts and analysts immediately after the announcement of the deal in April 2015. For instance, an article by a former minister of state for defence, Jitendra Singh, that had appeared in Economic Times on August 3, 2015 did question the haste in which the deal was announced and sought clarifications for overriding all processes and procedures related to defence procurement.

Of all the issues related to procedures for defence procurement which the court is said to have been duly satisfied about its fulfillment, the issue of cancellation of previous deal for 108 aircraft begs a greater attention. Here too, the court cites the assertion by the respondents that there was an impasse between Dassault Aviation and Hindustan Aeronautics Limited (HAL) over several issues including refusal by Dassault to undertake contractual obligations for the aircrafts that HAL would manufacture in India and quite a longer time which HAL would take for completing the works apportioned to it.

It is to be noted that as late as 27 March 2015, the CEO of Dassault Eric Trappier had categorically stated that “the work on completing the contract is taking time, but the deal is 95% complete”.  How could the deal be considered as 95% complete when such important and core issues had remained unresolved?

In the first place, the court was not inclined to go into details about the pricing; yet, did so to satisfy its conscience. It is unclear from where the court got an expertise to dissect the figures of complex pricing as it claimed to have closely compared the pricing. However, again, the court laid to rest such arguments by stating that the respondents had claimed that there was commercial advantage in purchase of 36 aircraft and at the same time it argued that it was not the job of the court to carry out comparison.

Comments of the court on the most crucial issue over which the controversy revolved, namely, the way the government allowed fulfillment of offset obligations and where the prima facie evidence point to favoritism fail to allay such fears.  It might be easier to hoodwink a man on the street outside India that the agreement signed between Dassault and Reliance in 2012 might have been carried forward in 2016; however, every second person in India knows that the entity owned by Mukesh Ambani with whom Dassault had forged an MoU in 2012 has nothing to do with any of the entities owned by Anil Ambani.

Further, there had been no acquisition of any of the elder brother’s business by the younger sibling and hence no transfer of human capital, technology and know-how to imply that the parties were furthering their old arrangements under the newly formed entity. Here too, the court ended up citing assertion by the respondents that Dassault was circumspect about HAL fulfilling contractual obligations and hence was left out by Dassault. It also found appropriate to rest its arguments on press releases by Dassault and Reliance in denying such allegations. If the respondents made the court to believe that the terms and conditions of the Offset Obligations were properly being maintained and such obligations were set to commence after 2019, where was the need for alacrity in Anil Ambani holding parleys with Dassault in Paris right during the period when the deal for 36 Rafale aircraft was announced by the prime minister?

One would wish that even if the court were to dismiss the request by the petitioners for investigation by the apex investigative agency, the court had recommended probe by a joint parliamentary committee, instead of giving a clean chit to the government on its own and that would have caused to clear its conscience too.


All opinions and views expressed in columns and blogs and comments by readers are those of individual writers and do not necessarily reflect the editorial policy of Caravan Daily.


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