Rafale Judgment Could Boost Competitive Defence Acquisition Process
Clearing the allegations of corruption in the Indo French Rafale deal, the Supreme Court of India may have also given a boost to a competitive defence acquisition process in India increasing confidence of the military and civil establishment while greater transparency is emphasized.
The Ministry of Defence in a reaction to the Supreme Court verdict which categorically rejected the Review Petitions in the Indo French Rafale deal said this brings to a close an exercise of vilification and casting doubts on the Defence acquisition process which has an adverse impact on the morale of the Security Forces.
The ministry in a press release noted that the Supreme Court in its judgment dated 14th November 2019 has categorically stated that the Review Petitions are without any merit and are dismissed. While dismissing the review petitions, the Court has observed about the petitioners that “It does appear that the endeavour of the petitioners is to construe themselves as an Appellate Authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be jurisdiction to be exercised.”
The Court while upholding the decision making process has held that “All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process”. The Court has further elaborated that “there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.” (emphasis added) The Court has mentioned that “We have elaborately dealt with the pleas of the learned counsel for the parties in our order dated 14.12.2018 under the heads of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’.”
The Court has rightly observed about the need for fighter aircraft and the delay in the procurement process: “We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute.” On pricing, the Court has upheld the position of the Government that the price of the aircraft is lower than the previous deal and remarked “Thus the pricing of the basic aircraft had to be compared which was marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.” With regards to the plea of the review petitioners regarding registration of an FIR and investigation by CBI and that the contract has been reviewed prematurely by the judiciary, the Court has noted that “we do not consider this a fair submission …… (as) all counsels including counsel representing petitioners ……. addressed elaborate submissions on this matter.
No doubt that there was a prayer made for registration of FIR and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.” “The petitioners cannot be permitted to state that having so taken recourse to this remedy, they want an adjudication process which is really different from what is envisaged under the provisions invoked by them.” (emphasis added) The Court has allowed the prayer of Union of India for correction of an error in Para 25 of the judgment delivered on 14th December 2018 which formed a major basis for filing of the review by the petitioners and it has been corrected as under: The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed before the Parliament and in public domain.”
It will be pertinent to quote the following from the Hon’ble Court’s judgment dated 14th December 2018: “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 of the nation. The empowerment of Defence forces with adequate technology and material support is, therefore, a matter of vital importance as per the Press Release.
India’s defence acquisitions process has been mired in delays due to long procedure and bureaucratic challenges for competitive defence acquisitions with preference for government to government deals. Now with the clearance of wrong doing in the Rafale acquisitions hopefully there will be a push for greater transparency and confidence in the military and civil establishment to conduct complex negotiations.