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SC rejects pleas for review of Rafale verdict

New Delhi: The Supreme Court (SC) on Thursday rejected pleas for a review of its judgment that gave a clean chit to the Modi government on the purchase of 36 Rafale fighter jets from France and said there is no ground to order an FIR by the Central Bureau of Investigation (CBI) or a roving inquiry into allegations of irregularities in the controversial deal.

But a separate and concurring verdict by Justice K M Joseph that the unanimous judgment “would not stand in the way” of the CBI from taking action on the complaint for lodging of an FIR prompted Congress leader Rahul Gandhi to say the judge has left open a “huge door” for investigation. The three-judge bench was headed by Chief Justice Ranjan Gogoi, who is due to demit office on Sunday.

As the verdict set off a political slugfest between the BJP and the Congress, Union Home Minister Amit Shah welcomed the judgment as “victory of truth” and demanded an apology from Gandhi.

Shah asserted that the decision is a befitting reply to those leaders and parties who rely on “malicious and baseless campaigns” while BJP working president J P Nadda said Gandhi tried to “mislead the nation from road to Parliament”.

Law Minister Ravi Shankar Prasad questioned if Gandhi raised the issue at the behest of French company Dassault Aviation’s rivals.

Gandhi demanded a criminal probe as well as an inquiry by a Joint Parliamentary Committee (JPC) into the Rs 58,000 crore deal while Congress chief spokesperson Randeep Surjewala claimed the judgment is not a clean chit by the apex court. “Rather than indulging in celebrations, BJP government should agree to a JPC investigation,” Surjewala told reporters.

The top court while refusing to re-examine the aspects of pricing, decision-making process and selection of the offset partner in the deal for purchase of 36 Rafale jets from Dassault Aviation said the review applications cannot be entertained unless there is an “error apparent on the face of the record”. It said there was no occasion to doubt the decision-making process in the procurement of the jets.

The petitions seeking a review of the December 14, 2018, verdict were filed by former Union ministers Yashwant Sinha, Arun Shourie, activist lawyer Prashant Bhushan and others. They had demanded a court-monitored CBI probe into the aircraft deal.

The court also said it was not satisfied with the submission that it decided the disputed questions of facts in the deal “prematurely” without investigation. “We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. 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,” said the bench also comprising Justice S K Kaul.

The bench said it cannot lose sight of the fact it is 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.

“We had concluded that other than the three aspects – Decision Making Process, Pricing and Offsets – that too to a limited extent, this court did not consider it appropriate to embark on a roving and fishing enquiry.”

While dealing with the allegation of irregularities on the pricing of the jets, the top court said it satisfied itself with the material made available and it is not the function of this court to determine the prices and act on mere “suspicion” of certain persons.

“The internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively 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,” it said.

With regard to the decision-making process, the apex court said the petitioners contended there was contradictory material on the basis of certain documents obtained. “We, however, found 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.”

The bench said it appears that the petitioners construed themselves as an appellate authority to determine each aspect of the contract and involve the court to do the same.

On the contention that some aspects were not available to them and came to light subsequently by their ‘sourcing’ information after the December 14, 2018 decision, the court said, “We decline to, once again, embark on an elaborate exercise of analysing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters”.

Justice Joseph noted in detail about the allegations of choosing and showing favouritism to Anil Ambani’s company as an offset partner of the French firm. The company has denied allegations against it. However, the judge said in the December 14 judgment it was observed, “this court’s lack of experience of what is technically feasible, as noted by the court, has weighed with it”.

Justice Joseph said it is “beyond dispute” that offences mentioned in the complaint filed by the petitioners are “cognizable”.

“…It is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent (CBI)…From taking action on…Complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act,” he added.

Defence Minister Rajnath Singh said the allegations of corruption in the Rafale deal were aimed at maligning Prime Minister Narendra Modi’s image of a clean and honest leader and demanded an apology from the Congress.

Former IAF chief B S Dhanoa said the controversy over the Rafale deal was created for political gains which impacted military modernisation and the Supreme Court’s verdict on the mega procurement is a vindication of the government’s stand.

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