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2018 (12) TMI 1716 - SC - Indian LawsPublic Interest Litigations - procurement of 36 Rafale Fighter Jets for the Indian Airforce - origins in the post Kargil experience - HELD THAT - The extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth of judicial review which could be understood as an across the board principle to apply to all cases of award of work or procurement of goods/material. The scrutiny of the challenges before us, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement being crucial to the nation s sovereignty. Pricing of aircrafts - HELD THAT - The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience. There are 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.
Issues Involved:
1. Decision-making process 2. Difference in pricing 3. Choice of Indian Offset Partner (IOP) Detailed Analysis: Decision-Making Process: The procurement of 36 Rafale Fighter Jets for the Indian Airforce originated from the post-Kargil experience. Initially, in June 2001, there was an in-principle approval for procuring 126 fighter jets. A transparent Defence Procurement Procedure (DPP) was formulated in 2002, with an offset clause included in 2005 to promote indigenization. The Defence Acquisition Council (DAC) granted "Acceptance of Necessity" in June 2007 for 126 Medium Multi Role Combat Aircrafts (MMRCA), including 18 direct fly-away aircrafts from the Original Equipment Manufacturer (OEM), Dassault Aviation, with the remaining 108 to be manufactured by Hindustan Aeronautics Limited (HAL). Negotiations continued without final results, leading to a change in political dispensation in mid-2014. In March 2015, the Request for Proposal for 126 MMRCA was withdrawn, and an Indo-French joint statement for acquiring 36 Rafale Jets through an Inter-Governmental Agreement (IGA) was issued on 10th April 2015. The contract was signed on 23rd September 2016, with deliveries scheduled from October 2019. The Court emphasized that judicial scrutiny of governmental decisions relating to defence procurement must be limited, especially in matters of national security. The parameters of judicial review are confined to "illegality," "irrationality," and "procedural impropriety." The Court found that the decision-making process was broadly followed, and the need for the aircrafts was not in doubt. The long negotiations for 126 MMRCAs did not produce any result, and the decision to procure 36 aircrafts instead was justified. The Court concluded that it could not sit as an appellate authority to scrutinize each aspect of the acquisition process. Difference in Pricing: The petitioners challenged the pricing of the aircrafts, alleging huge escalations in costs based on public domain materials. The Court initially expressed disinclination to delve into pricing but later directed that details be placed in sealed covers. The Government did not disclose pricing details to the Parliament, citing national security concerns and an agreement between India and France. The pricing details were shared with the Comptroller and Auditor General (CAG) and examined by the Public Accounts Committee (PAC). The Court examined the price details and found a commercial advantage in the purchase of 36 Rafale aircrafts. It concluded that it was not the Court's job to compare pricing details in such matters, and the material had to remain confidential. Choice of Indian Offset Partner (IOP): The issue of IOP triggered the litigation. The offset contract was governed by the Defence Offset Guidelines of DPP 2013. The vendor/OEM is free to select its IOP, and the Government has no role in this selection. The petitioners alleged that an amendment to the Offset Guidelines with retrospective effect favored a particular Indian business group. The Court found that the vendor/OEM had not yet submitted a formal proposal indicating details of IOPs. The Government reiterated that it had no role in the selection of IOPs. The Court noted that the commercial arrangement between Dassault and Reliance Aerostructure Ltd. was a matter of their commercial interests and that there was no substantial material to show commercial favoritism by the Indian Government. Conclusion: The Court found no reason for intervention on the issue of purchasing 36 Rafale aircrafts. It dismissed all the writ petitions, emphasizing that individual perceptions could not be the basis for a fishing and roving enquiry by the Court, especially in sensitive matters of national security. The Court's views were primarily from the standpoint of exercising jurisdiction under Article 32 of the Constitution of India.
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