Hon'ble Mr. Justice Ranjan Gogoi
Bench :- HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, HON'BLE MR. JUSTICE K.M. JOSEPH
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION [CRIMINAL] NO.225 OF 2018
MANOHAR LAL SHARMA …. PETITIONER(S)
VERSUS
NARENDRA DAMODARDAS MODI
& ORS. … RESPONDENTS(S)
WITH
W.P.(C) NO.1205/2018
W.P. (CRL) NO.297/2018
W.P. (CRL) NO.298/2018
J U D G M E N T
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
2
in the postKargil 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 inprinciple approval was granted for procurement of 126
fighterjets 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,
3
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 IndoFrench joint statement, for acquisition of
36 Rafale Jets in flyaway condition through an InterGovernmental 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 InterMinisterial Consultations with the approval
4
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
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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 nontransparency 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 InterGovernmental 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
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Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan
claiming to be public spirited Indians. They are aggrieved by nonregistration 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.
5. Adequate Military strength and capability to
discourage and withstand external aggression and to protect the
sovereignty and integrity of India, undoubtedly, is a matter of
utmost concern for the Nation. The empowerment of defence
forces with adequate technology and material support is,
therefore, a matter of vital importance.
6. Keeping in view the above, it would be appropriate, at
the outset, to set out the parameters of judicial scrutiny of
governmental decisions relating to defence procurement and to
indicate whether such parameters are more constricted than
what the jurisprudence of judicial scrutiny of award of tenders
7
and contracts, that has emerged till date, would legitimately
permit.
7. Parameters of judicial review of administrative
decisions with regard to award of tenders and contracts has
really developed from the increased participation of the State in
commercial and economic activity. In Jagdish Mandal vs.
State of Orissa and Ors.1
this Court, conscious of the
limitations in commercial transactions, confined its scrutiny to
the decision making process and on the parameters of
unreasonableness and mala fides. In fact, the Court held that it
was not to exercise the power of judicial review even if a
procedural error is committed to the prejudice of the tenderer
since private interests cannot be protected while exercising such
judicial review. The award of contract, being essentially a
commercial transaction, has to be determined on the basis of
considerations that are relevant to such commercial decisions,
and this implies that terms subject to which tenders are invited
are not open to judicial scrutiny unless it is found that the same
have been tailormade to benefit any particular tenderer or a
1 (2007) 14 SCC 517
8
class of tenderers. [See Maa Binda Express Carrier & Anr. Vs.
NorthEast Frontier Railway & Ors.2
]
8. Various Judicial pronouncements commencing from
Tata Cellular vs. Union of India3
, all emphasise the aspect that
scrutiny should be limited to the Wednesbury Principle of
Reasonableness and absence of mala fides or favouritism.
9. We also cannot lose sight of the tender in issue. The
tender is not for construction of roads, bridges, etc. It is a
defence tender for procurement of aircrafts. The parameter of
scrutiny would give far more leeway to the Government, keeping
in mind the nature of the procurement itself. This aspect was
even emphasized in Siemens Public Communication Networks
Pvt. Ltd. & Anr. Vs. Union of India & Ors.4
. The triple ground
on which such judicial scrutiny is permissible has been
consistently held to be “illegality”, “irrationality” and “procedural
impropriety”.
2 (2014) 3 SCC 760
3 (1994) 6 SCC 651
4 (2008) 16 SCC 215
9
10. In Reliance Airport Developers (P) Ltd. vs. Airports
Authority of India & Ors.5
the policy of privatization of strategic
national assets qua two airports came under scrutiny. A
reference was made in the said case to the commentary by
Grahame Aldous and John Alder in their book ‘Applications for
Judicial Review, Law and Practice’:
“There is a general presumption
against ousting the jurisdiction of the courts,
so that statutory provisions which purport to
exclude judicial review are construed
restrictively. There are, however, certain areas
of governmental activity, national security
being the paradigm, which the courts regard
themselves as incompetent to investigate,
beyond an initial decision as to whether the
Government's claim is bona fide. In this kind of
nonjusticiable area judicial review is not
entirely excluded, but very limited. It has also
been said that powers conferred by the royal
prerogative are inherently unreviewable but
since the speeches of the House of Lords in
Council of Civil Service Unions Vs. Minister for
the Civil Service [1985 AC 374: (1984) 3 WLR
1174 (HL): (1984) 3 All ER 935] this is
doubtful. Lords Diplock, Scaman and Roskili
(sic.)6
appeared to agree that there is no
general distinction between powers, based
upon whether their source is statutory or
prerogative but that judicial review can be
limited by the subjectmatter of a particular
power, in that case national security. Many
prerogative powers are in fact concerned with
sensitive, nonjusticiable areas, for example,
5 (2006) 10 SCC 1
6 To be read as ‘Roskill’
10
foreign affairs, but some are reviewable in
principle, including where national security is
not involved. Another nonjusticiable power is
the Attorney General's prerogative to decide
whether to institute legal proceedings on
behalf of the public interest."
[emphasis supplied]
11. It is our considered opinion/view 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.
12. Adopting such an approach, on 10th October, 2018
when the first two writ petitions were initially listed before the
Court, the Court had specifically observed in its order that it is
proceeding in the matter by requiring the Government of India to
apprise the Court of the details of the steps taken in the decisionmaking process notwithstanding the fact that the averments in
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the writ petitions were inadequate and deficient. The Court had
also indicated that it was so proceeding in the matter in order to
satisfy itself of the correctness of the decisionmaking process. It
was also made clear that the issue of pricing or matters relating
to technical suitability of the equipment would not be gone into
by the Court. The requisite information was required to be
placed before the Court by the Government of India in sealed
cover. Before the next date of hearing fixed i.e. 31st October,
2018, the other two writ petitions came to be filed.
13. On 31st October, 2018, the Court in its order had
recorded that in none of the writ petitions the suitability of the
fighter jets and its utility to the Indian Airforce had been called
into question. Rather what was doubted by the petitioners is the
bona fides of the decision making process and the price/cost of
the equipment at which it was proposed to be acquired.
14. Pursuant to the order dated 10th October 2018, a note
in sealed cover delineating the steps in the decisionmaking
process was submitted to the Court and by order dated 31st
October 2018 this Court had directed that such of the
information which has been laid before the Court, which can
12
legitimately be brought into the public domain, be also made
available to the petitioners or their counsels. Details with regard
to the induction of the Indian Offset Partner (IOP), if any, was
also required to be disclosed. The Court also directed that the
details with regard to pricing; the advantages thereof, if any,
should also be submitted to the Court in a sealed cover.
15. It is in the backdrop of the above facts and the
somewhat constricted power of judicial review that, we have held,
would be available in the present matter that we now proceed to
scrutinise the controversy raised in the writ petitions which raise
three broad areas of concern, namely, (i) the decisionmaking
process; (ii) difference in pricing; and (iii) the choice of IOP.
Decision Making Process
16. The details of the steps in the decisionmaking process
leading to the award of the 36 Rafale fighter aircrafts’ order have
been set out in response to the order dated 10th October, 2018.
The Government states that the DPP 2002 has been succeeded
by periodical reviews in 2005, 2006, 2008, 2011, 2013 and 2016.
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The preamble to DPP has been referred to capture its essence,
which emphasises that –
“Defence acquisition is not a standard open
market commercial form of procurement and
has certain unique features such as supplier
constraints, technological complexity, foreign
suppliers, high cost, foreign exchange
implications and geopolitical ramifications.
As a result, decision making pertaining to
defence procurement remains unique and
complex.”
It also states that –
“Defence procurement involves long gestation
periods and delay in procurement will impact
the preparedness of our forces. The needs of
the armed forces being a nonnegotiable and
an uncompromising aspect, flexibility in the
procurement process is required, which has
also been provisioned for.”
It is DPP 2013 which is stated to have been followed in the
procurement in question.
It is no doubt true that paragraph 77 of the DPP 2013
reads as follows:
“77. This procedure would be in supersession
of Defence Procurement Procedure 2011 and
will come into effect from 01 June 2013. There
are, however, cases which would be under
various stages of processing in accordance
with provision of earlier versions of DPP at the
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time of commencement of DPP2013. The
processing of these cases done so far under the
earlier procedure will be deemed to be valid.
Only those cases in which RFP is issued after
01 June, 2013, will be processed as per DPP2013.”
In other words when it is stated that only those cases in which
RFP is issued after 1st June 2013 will be processed as per DPP
2013, in this case where the RFP was issued much prior to 1st
April 2013 and it was withdrawn, as already noted, in June
2015, a question may arise as to how it could be claimed that
DPP 2013 was followed. We, however, also notice clause 75 of
DPP 2013 which reads as follows:
“75. Any deviation from the prescribed
procedure will be put up to DAC through DPB
for approval.”
17. Also, we notice that the official respondents have
sought support from paragraph 71 of the DPP 2013. Para 71 of
DPP 2013, in respect of the IGA has been referred to, which
postulates possibilities of procurement from friendly foreign
countries, necessitated due to geostrategic advantages that are
likely to accrue to the country. Such procurement would not
classically follow the Standard Procurement Procedure or the
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Standard Contract Document, but would be based on mutually
agreed provisions by the Governments of both the countries
based on an IGA, after clearance from the Competent Financial
Authority (hereinafter referred to as “CFA”). Of the total
procurement of about Rs.7.45 lakh crores since 2002 under DPP,
different kinds of IGAs, including Foreign Military Sales and
Standard Clauses of Contract account for nearly 40%. With the
object of promoting indigenization, a robust offset clause is said
to have been included since 2005. As per the Defence Offset
Guidelines of 2013, the vendor/Original Equipment
Manufacturer (hereinafter referred to as “OEM”) is free to select
its IOPs for implementing the offset obligation.
18. As far as the endeavour to procure 126 fighter aircrafts
is concerned, it has been stated that the contract negotiations
could not be concluded, inter alia, on account of unresolved
issues between the OEM and HAL. These have been set out as
under:
“i) ManHours that would be required to
produce the aircraft in India: HAL required 2.7
times higher ManHours compared to the
French side for the manufacture of Rafale
aircraft in India.
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ii) Dassault Aviation as the seller was
required to undertake necessary contractual
obligation for 126 aircraft (18 direct flyaway
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.”
19. The aforesaid issues are stated to have been
unresolved for more than three years. Such delay is said to have
impacted the cost of acquisition, as the offer was with ‘inbuilt
escalation’ and was influenced by EuroRupee exchange rate
variations. The stalemate resulted in the process of RFP
withdrawal being initiated in March 2015. In this interregnum
period, adversaries of the country, qua defence issues, inducted
modern aircrafts and upgraded their older versions. This
included induction of even 5th Generation Stealth Fighter
Aircrafts of almost 20 squadrons, effectively reducing the combat
potential of our defence forces. In such a situation, governmenttogovernment negotiations resulted in conclusion of the IGA for
the supply of 36 Rafale Aircrafts, as part of a separate process.
The requisite steps are stated to have been followed, as per DPP
2013. An INT7
was constituted to negotiate the terms and
7 Indian Negotiating Team
17
conditions, which commenced in May 2015 and continued till
April 2016. In this period of time, a total of 74 meetings were
held, including 48 internal INT meetings and 26 external INT
meetings with the French side. It is the case of the official
respondents that the INT completed its negotiations and arrived
at better terms relating to price, delivery and maintenance, as
compared to the MMRCA offer of Dassault. This was further
processed for interministerial consultations and the approval of
the CCS was also obtained, finally, resulting in signing of the
agreement. This was in conformity with the process, as per para
72 of DPP 2013.
20. The petitioners, on the other hand, seek to question
the very fulfilment of the prerequisites for entering into an IGA.
The Government of France, giving only a ‘Letter of Comfort’ and
not a ‘Sovereign Guarantee’ has been questioned.
21. It is a say of the petitioners that para 71 envisages
three eventualities, where the question of entering into an
IGA would arise, which have not arisen in the present case:
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(a) Proven technology and capabilities belonging to a
friendly foreign country is identified by our Armed Forces while
participating in joint international exercises;
(b) Large value weapon system/platform in service in a
friendly foreign country is available for transfer or sale normally
at a much lesser cost; or
(c) Requirement of procuring a specific stateoftheart
equipment/platform where the Government of the OEM’s country
might have imposed restriction on its sale and thus the
equipment cannot be evaluated on ‘No Cost No Commitment’
basis.
22. We have studied the material carefully. We have also
had the benefit of interacting with senior Air Force Officers who
answered Court queries in respect of different aspects, including
that of the acquisition process and pricing. We are satisfied that
there is no occasion to really 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. We have been informed that joint exercises have taken
19
place, and that there is a financial advantage to our nation. It
cannot be lost sight of, that these are contracts of defence
procurement which should be subject to a different degree and
depth of judicial review. Broadly, the processes have been
followed. The need for the aircrafts is not in doubt. The quality of
the aircraft is not in question. 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 could
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
come practically to an end, resulting in a recall of the RFP. 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 despite the fact that even before the withdrawal of RFP, an
announcement came to be made in April 2015 about the decision
to go in only for 36 aircrafts. Our country cannot afford to be
unprepared/underprepared in a situation where our adversaries
are stated to have acquired not only 4th Generation, but even 5th
Generation Aircrafts, of which, we have none. It will not be
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correct for the Court to sit as an appellate authority to scrutinize
each aspect of the process of acquisition.
23. We may also note that the process was concluded for
36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing
was called into question, then. It is only taking advantage of the
statement by the exPresident 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 decisionmaking process and pricing.
We do not consider it necessary to dwell further into this issue or
to seek clausebyclause compliances.
Pricing
24. The challenge to the pricing of the aircrafts, by the
petitioners, is sought to be made on the ground that there are
huge escalations in costs, as per the material in public domain,
as found in magazines and newspapers. We did initially express
our disinclination to even go into the issue of pricing. However,
by a subsequent order, to satisfy the conscience of the Court, it
was directed that details regarding the costs of the aircrafts
should also be placed in sealed covers before the Court.
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25. The material placed before us shows that the
Government has not disclosed pricing details, other than the
basic price of the aircraft, even to the Parliament, on the ground
that sensitivity of pricing details could affect national security,
apart from breaching the agreement between the two countries.
The pricing details have, however, been shared with the
Comptroller and Auditor General (hereinafter referred to as
“CAG”), and the report of the CAG has been examined by the
Public Accounts Committee (hereafter referred to as “PAC”). Only
a redacted portion of the report was placed before the Parliament,
and is in public domain. The Chief of the Air Staff is stated to
have communicated his reservation regarding the disclosure of
the pricing details, including regarding the weaponry which could
adversely affect national security. 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
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material has still been placed before the Court to satisfy its
conscience.
26. We have examined closely the price details and
comparison of the prices of the basic aircraft along with
escalation costs as under the original RFP as well as under the
IGA. We have also gone through the explanatory note on the
costing, item wise.
Suffice it to say that as per the price details, the official
respondents claim there is a commercial advantage in the
purchase of 36 Rafale aircrafts. The official respondents have
claimed that there are certain better terms in IGA qua the
maintenance and weapon package. It is certainly not the job of
this Court to carry out a comparison of the pricing details in
matters like the present. We say no more as the material has to
be kept in a confidential domain.
Offsets
27. The issue of IOP is what has triggered this litigation.
The offset contract is stated to have been governed by the
Defence Offset Guidelines of DPP 2013. Two of the said contracts
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were signed with Dassault and M/s MBDA Missile Systems
Limited on 23rd September, 2016, the same day on which the IGA
was signed between the Government of India and the
Government of France. These are the French industrial suppliers
of the Aircraft package and Weapon Package respectively. There
are stated to be no offset obligations in the first three years, but
the offset obligations are to commence from October 2019
onwards.
28. The complaint of the petitioners is that the offset
guidelines contemplate that the vendor will disclose details about
the Indian Offset partner however, in order to help the business
group in India in question, an amendment was carried out in
paragraph 8 of the Offset Guidelines that too with retrospective
effect. By virtue of the said amendment it is contended that
cloak of secrecy is cast about the Offset partner and the vendor is
enabled to give the details at a much later point of time. It is
contended, however, that other provisions of the Offset
Guidelines remain unamended, and, therefore, Government
cannot pretend ignorance about the Indian Offset partner as has
been done in the affidavit filed. It is complained that favouring
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the Indian business group has resulted in offence being
committed under the Prevention of Corruption Act.
29. As per clause 8 of DPP 2013, dealing with the
processing of offset proposals, it has been stated in clause 8.2 as
under:
“8. Processing of Offset Proposals
8.2 The TOEC8
will scrutinize the technical
offset proposals (excluding proposals for
Technology Acquisition by DRDO as per para
8.3) to ensure conformity with the offset
guidelines. For this purpose, the vendor may
be advised to undertake changes to bring his
offset proposals in conformity with the offset
guidelines. The TOEC will be expected to
submit its report within 48 weeks of its
constitution.”
30. It has been categorically stated that the vendor/OEM
is yet to submit a formal proposal, in the prescribed manner,
indicating the details of IOPs and products for offset discharge. A
press release in the form of a ‘Clarification on Offset Policy’,
posted on 22nd September, 2018 has also been placed before us.
Inter alia, it states that the Government reiterates that it has no
role to play in the selection of the IOP. As per the Defence Offset
8 Technical Offset Evaluation Committee
25
Guidelines, the OEM is free to select any Indian company as its
IOP. A joint venture is stated to have come into being between
Reliance Defence and Dassault in February 2017, which is stated
to be a ‘purely commercial arrangement’ between the two private
companies. Media reports of February 2012 are stated to suggest
that Dassault, within two weeks of being declared the lowest
bidder for procurement of 126 aircrafts by the previous
Government, had entered into a pact for partnership with
Reliance Industries (Another business group) in the Defence
sector. Dassault has also issued a press release stating that it
has signed partnership agreements with several companies and
is negotiating with over hundred other companies. As per the
guidelines, the vendor is to provide details of the IOPs, either at
the time of seeking offset credit or one year prior to discharge of
offset obligation, which would be due from 2020 onwards. The
aforesaid press release is in conformity with the clause dealing
with IOPs which reads as under:
“4. Indian Offset Partner
4.3 The OEM/vendor/TierI subvendor will
be free to select the Indian offset partner for
implementing the offset obligation provided the
IOP has not been barred from doing business
by the Ministry of Defence.”
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31. Despite the aforesaid illustration, the petitioners kept
on emphasising that the French Government has no say in the
matter, as per media reports. It is also stated that there was no
reason for Dassault to have engaged the services of Reliance
Aerostructure Ltd., through a joint venture, when the company
itself had come into being only on 24th April, 2015. The
allegation, thus, is that the Indian Government gave a benefit to
Reliance Aerostructure Ltd., by compelling Dassault to enter into
a contract with them, and that too at the cost of the public
enterprise, HAL.
32. It is no doubt true that the company, Reliance
Aerostructure Ltd., has come into being in the recent past, but
the press release suggests that there was possibly an
arrangement between the parent Reliance company and Dassault
starting from the year 2012. As to what transpired between the
two corporates would be a matter best left to them, being matters
of their commercial interests, as perceived by them. There has
been a categorical denial, from every side, of the interview given
by the former French President seeking to suggest that it is the
Indian Government which had given no option to the French
27
Government in the matter. On the basis of materials available
before us, this appears contrary to the clause in DPP 2013
dealing with IOPs which has been extracted above. Thus, the
commercial arrangement, in our view, itself does not assign any
role to the Indian Government, at this stage, with respect to the
engagement of the IOP. Such matter is seemingly left to the
commercial decision of Dassault. That is the reason why it has
been stated that the role of the Indian Government would start
only when the vendor/OEM submits a formal proposal, in the
prescribed manner, indicating details of IOPs and products for
offset discharge. As far as the role of HAL, insofar as the
procurement of 36 aircrafts is concerned, there is no specific role
envisaged. In fact, the suggestion of the Government seems to be
that there were some contractual problems and Dassault was
circumspect about HAL carrying out the contractual obligation,
which is also stated to be responsible for the nonconclusion of
the earlier contract.
33. Once again, it is neither appropriate nor within the
experience of this Court to step into this arena of what is
technically feasible or not. The point remains that DPP 2013
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envisages that the vendor/OEM will choose its own IOPs. In this
process, the role of the Government is not envisaged and, thus,
mere press interviews or suggestions cannot form the basis for
judicial review by this Court, especially when there is categorical
denial of the statements made in the Press, by both the sides.
We do not find any substantial material on record to show that
this is a case of commercial favouritism to any party by the
Indian Government, as the option to choose the IOP does not rest
with the Indian Government.
Conclusion:
34. 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
29
Article 32 of the Constitution of India which has been invoked in
the present group of cases.
………….....................,,CJI
[RANJAN GOGOI]
………….....................,,J.
[SANJAY KISHAN KAUL]
………….....................,,J.
[K.M. JOSEPH]
NEW DELHI
DECEMBER 14, 2018
