Supreme Court dismisses petitions seeking probe into Rafale deal

The Supreme Court bench of the Chief Justice of India Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph, on Friday dismissed writ petitions seeking an independent and impartial probe into the government’s purchase of 36 Rafale fighter jets from France.  

The CJI Ranjan Gogoi, reading out the operative part of the judgment, said the scope of judicial review in defence procurement is very limited as it was not possible to lay down across-the-board principles.  “We have to weigh national security, sovereignty, while scrutinising the controversy,” he said.

Outlining three broad areas in the deal, the decision-making process, the price and the choice of the Indian offset partner, he explained why the court could not intervene in each of them despite misgivings expressed by the petitioners. 

On the decision-making process, the CJI said the bench was satisfied, after interaction with senior officers of the Indian Air Force, that there was no occasion to doubt its integrity.  There could have been minor deviations from the established procedures, but they don’t justify jettisoning the contract, he held.  The degree of depth of judicial review in defence deals had to be different, especially when the need for the aircraft and its quality were not in doubt, he added.

“We can’t sit in judgment on why the government settled for 36 and not 126 aircraft as originally planned,” he said, refusing to read motives into the government’s decision.  “We can’t be unprepared.  Our adversaries are with fourth and fifth generation aircraft, whereas we have none,” he reasoned.

Expressing inability to review the official claim of commercial advantage in the deal, he said: “It is not our job to carry out comparison of pricing details.”

On the choice of the offset partner, he said it was neither appropriate for the court, nor was it competent to review it.  “Press interviews cannot be the basis for judicial intervention; there is no substantive material to suggest commercial favouritism in the deal,” the CJI read out from the judgment.  In this process, the role of the government is not envisaged and there is categorical denial of the statements made in the press by both the sides, the bench reasoned.

The implication of the judgment is that it is for the vendor to choose the partner and if the French aircraft manufacturer, Dassault, has chosen Reliance Defence as its partner, that cannot suggest any procedural lapse.  

The CJI further added that perception could not be the basis for a fishing and roving enquiry by the court, especially in such matters where there was no reason for intervention as it was a sensitive issue. 

The petitioners—the public interest litigation lawyers Manoharlal Sharma and Vineet Dhanda, Aam Aadmi Party MP Sanjay Singh, and the erstwhile BJP leaders who are now estranged from the party, Arun Shourie and Yashwant Sinha—raised a range of concerns over the deal. 

Several departures from the established procedures in defence deals while concluding the Rafale deal by the Modi government were pointed out.  But the Bench dismissed these concerns as not too serious to warrant interference with the country’s defence preparedness.

The dismissal of the petitions by the Supreme Court has raised questions over the wisdom of approaching the court for judicial remedy to probe complaints of favouritism and crony capitalism in defence deals.  According to public-spirited petitioners like the well-known lawyer Prashant Bhushan, they had reservations over approaching the court through a PIL on the issue, but had to present the facts once it was clear that the court was seized of the issue because of some ill-informed petitions with similar prayers filed earlier.  The dismissal of PILs by the court after a full hearing has been interpreted to mean a clean chit to the government over the deal.