Rafale judgement: SC dismisses review plea

The Supreme Court on Thursday declined to reconsider its judgement that had rejected a plea for registration of an FIR by the CBI into the 2016 deal to buy 36 Rafale fighter jets from France.

A bench of Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K M Joseph, once again, trashed the questions raised over the pricing of the aircraft, the decision making process and selection of Anil Ambani company as offset partner, in a much relief to the Narendra Modi government, which faced repeated onslaught launched by main opposition Congress party.

The top court said, “We cannot lose sight of the fact that we are dealing with a contract for aircraft, which was pending before different governments for quite some time and the necessity for those aircraft has never been in dispute.”

The court pointed out it had already dealt with three aspects of ‘decision-making process’, ‘pricing’ and ‘offsets partner’ in its judgement passed on December 14, 2018 in its writ jurisdiction under Article 32 of the Constitution.

Ratifying the government's oft-repeated assertions, it said the pricing of the basic aircraft can't be compared to the fully-loaded ones, while maintaining that the decision-making process always involved the debate but the final decision was taken by the competent authority.

The court found the review petitions filed by former Union Ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan and others as "without merit".

It did not agree to the contention that the judgement was passed on the basis on “patently false documents” or “suppression of facts”. It, in fact, allowed a plea by the Centre for correction in the judgement wherein it was stated that the redacted version of CAG report has been placed in Parliament.

The bench declined to embark upon analysing each clause of the deal and the decision-making process, saying “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.”

Justice Joseph gave his separate and concurring verdict, saying the December 14, 2018 judgement would not stand as a bar for the petitioners to seek registration of the FIR after taking sanction under the Prevention of Corruption Act.

Justice Kaul, who authored the lead judgement, said, “It is not the function of this court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the court.”

“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... (Pricing) has to be left to the best judgment of the competent authorities,” the bench said.

With regard to the contention that there were divergent views on the decision-making process, the bench said, “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.”

On selection of Anil Ambani's company as offset partner, the bench said when the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.