The Supreme Court on Wednesday asked the central government to submit in a sealed cover the decision-making process that led to the Rafale deal, brushing aside objections from the attorney-general that the bench was entertaining “political interest litigation”.
The directive comes at a time the Narendra Modi government is battling allegations of corruption in the fighter jet deal with French company Dassault Aviation.
The bench, headed by Chief Justice Ranjan Gogoi, however, clarified that it only wanted to “satisfy” itself about the “legitimacy” of the decision-making process and was concerned neither with the pricing or suitability of the fighter planes, nor the averments in two writ petitions.
“We make it clear that we are not issuing any notice at this stage on either of the writ petitions filed…. However, we would like to be apprised by the Government of India of the details of the steps in the decision-making process leading to the award of the order for the defence equipment in question i.e. Rafale jet-fighters.
“We also make it clear that… we have not taken into account any of the averments made in the writ petitions which appear to be inadequate and deficient. Our above order is only for the purpose of satisfying ourselves in the matter,” Justice Gogoi said.
“We also make it clear that the steps in the decision-making process that we would like to be apprised of would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirement of the Indian Air Force.”
The bench, which also included Justices Sanjay Kishan Kaul and K.M. Joseph, asked the Centre to place the decision-making process in a sealed cover by October 29 and fixed October 31 for the next hearing.
The Congress has accused massive irregularities in the deal, alleging that the price the government has finalised for each aircraft — Rs 1,670 crore — was over three times more than the Rs 526 crore the UPA government had arrived at.
The party has also questioned why Anil Ambani’s Reliance group was made Dassault Aviation's offset partner and why the state-run Hindustan Aeronautics Ltd was omitted.
Two advocates — Manohar Lal Sharma and Vineet Dhanda — had filed petitions in the court; Sharma pleading for prosecution of Modi and former defence minister Manohar Parrikar, and Dhanda for a sealed-cover report on details of the deal.
Another petitioner, Tehseen Poonawal, a Congress and information activist, withdrew his plea, although he was the first among the three to seek a probe on the ground that the deal did not have the Union cabinet's backing.
When the matter came up for hearing on Tuesday, Sharma argued his case, while advocate R.D. Upadhyay represented Dhanda.
Attorney-general K.K. Venugopal then rose on his own to urge the top court not to issue any notice. “Your Lordships, this is a matter of national security. About more than 40 questions were asked in Parliament which have only been selectively reproduced before Your Lordships. If notice is issued, it means notice has to go to the Prime Minister as he is one of the respondents in the petition.
“This is… a political interest litigation intended to achieve a political objective in the light of the fight between the Opposition and the ruling party…. This is not a judicially reviewable issue...,” Venugopal said.
Justice Gogoi asked: “Mr Attorney, suppose we ask for the details of the decision-making process in a sealed cover, how would you react? It shall only be for perusal by the judges….”
Venugopal said the issue involved national security and even he cannot have access to the details as the defence procurement procedure governed the issue.
“We are not issuing notice to the government,” Justice Gogoi said. “We only want to be satisfied about the legitimacy of the decision making.”
