SC refuses to re-examine aspects of pricing, decision making and offset partner in Rafale deal

The Supreme Court Thursday refused to re-examine the aspects of pricing, decision making process and selection of the offset partner in India's deal for purchase of Rafale jet fighters from French company Dassault Aviation.

In the review petition, there were allegations of irregularities on pricing and doubts were raised on decision making in giving priority to Rafale. Aspersions were also cast on choosing Anil Ambani's company as an offset partner.

A bench headed by the Chief Justice Ranjan Gogoi said such a submission was not fair as the apex court in its December 14, 2018 judgement had addressed all these issues in detail.

"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 Justices S K Kaul and K M Joseph.

While dealing with the allegation of irregularities on the pricing of the jets, the top court said that 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," the bench 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.

"In this context reference was made to (a) Acceptance of Necessity granted by Defence Acquisition Council not being available prior to contract which would have determined necessity and quantity of aircrafts; (b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure; (c) oversight of objections of three expert members of Indian Negotiating Team regarding certain increase in benchmark price; and (d) induction of Reliance Aerostructure Limited as an offset partner," the apex court said.

Justice Joseph, who wrote a separate but concurring judgement, noted in detail about the allegations of choosing and showing favouritism to Anil Ambani's company as an offset partner of the French firm.

However, the judge said that in the December 14 judgement it was observed, "This court's lack of experience of what is technically feasible, as noted by the Court, has weighed with it".