By
Nitya Chakraborty
The
Supreme Court in its much-awaited judgment on Rafale petitions given on Friday,
the last day before the winter recess of the Court, has given no glory to the
learned judges, especially the Chief Justice of India Ranjan Gogoi as the
judgment seems to be an attempt to avoid all the contentious issues mentioned
by the petitioners and somehow dismiss the petitions in a half hearted manner.
The apex Court has not performed its supreme duty as the custodian of the
nation. The field is wide open for a review petition accompanied by the battle
of the opposition parties demanding the setting up of a JPC to probe the Rafale
deal.
The
way the Supreme Court bench endorsed the decision making process involving the
Prime Minister is astonishing. This is the only area gone into by the three
judges and the judgment clearly shows that they have ignored some of the major
stages of the process involving serious violations on the part of the Indian
Government. According to oral remarks made by the Chief Justice Gogoi,” we have
studied the materials and interacted with the senior airforce officials. There
was no occasion to doubt the process, we are satisfied and even if minor
variations have occurred, that would not result in either setting aside the
contract or requiring a detailed scrutiny by the court. If variations have
occurred, the judgment should have mentioned that even while ruling out the
need for probe. Since the Court has only limited its focus to the decision
making process, the observations should have been comprehensive.
In
fact the judgment cursorily mentions that it is also a fact that the long
negotiations for procurement of 126 MMRCAs have not produced any result and
merely conjecturing that the initial RFP should have resulted in a contract, is
of no use. The hard fact is that not only was the contract not coming forth but
the negotiations had practically come to an end resulting in a recall on RFP.
Then the judgment mentions” We cannot sit in judgment over the wisdom of
deciding to go in for purchase of 36 aircrafts in place of 126. We cannot
possibly compel the government to go in for purchase of 126 aircraft”.
This
is the most important part involving the decision making process. The
negotiations with HAL were abandoned and in a hurry Prime Minister took the
decision on 36 aircraft. Strangely, the judges observe that” this is despite
the fact even before the withdrawal of RFP, an announcement came to be made in
April 2015 about the decision to go in only for 36 aircraft” Prime Minister
made the announcement on April 10, 2015 and the HAL was in the negotiations
till March 2015. Do this sudden shift was not a part of close scrutiny of the
decision making process, though the judgment had to mention that even before
the withdrawal of RPF, PM made the announcement.
Then
surprisingly, instead of playing the role of the bench probing the decision
making process in this important deal, the judges said our country cannot
afford to be unprepared/underprepared in a situation where our adversaries are
stated to have acquired not only 4th generation but also fifth generation
aircrafts of which we have none. It will not be correct for the Court to sit as
an appellate authority to scrutinize each aspect of the process of
acquisition..The petitioners gave all documented evidence of the sudden change
that took place in the decision making process between March 2015 and April 10,
2015 but this was not taken into account and t he most important component of
the decision making process that the Prime Minister unilaterally announced the
decision during his visit to France, was not taken into account. In fact
Narendra Modi’s name was not mentioned in this crucial part of the judgment on
decision making process.
What
was the actual situation? On April 11, 2015, the day after the announcement of
the Indian PM about purchasing 36 Rafale in ready to fly condition was
announced, Le Figaro, the newspaper owned by the Dassault group which will
manufacture the aircraft, reported that the surprise of the day(meaning April
10 meeting Between Indian PM and French President Hollande) was that it was not
the contract for t the purchase of 126 aircraft, 106 of which are assembled in
India and being negotiated for three years, that was concluded. New Delhi has
made use of a contract clause to order aircraft that will be built in France.
Thus
even the Dassault company people were surprised at the change from 126 to 36
and the change of the offset partners but this crucial aspect of the decision
making was overlooked by the judges in their judgment. The Congress and the
opposition can make full use of this haphazard order to demand probe by the JPC
into the Rafale deal as the judgment does not cover the pricing part as also
the offset partner issue. After assembly poll reverses, the Modi Government and
the BJP have to be prepared for its battle to defend the deal. The judgment of
the Supreme Court has given the saffrons no comfort as all the controversial
issues remain untouched in the judgment. (IPA
Service)
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