Can’t Go Into Rafale Issue Over And Over Again: Supreme Court

The Supreme Court on Monday refused to entertain a fresh petition for an independent investigation into the Rafale fighter jet deal, saying it will not go into the same issue “over and over again” as two previous judgments have already decided the matter.

By a judgment in 2018, the top court had ruled that there was no reason to doubt the decision-making process behind the Rafale jet deal, clearing the National Democratic Alliance (NDA) government, which was repeatedly accused by the Opposition of corruption in the ₹59,000-crore contract for 36 fighter jets.

Again, in November 2019, the top court shot down a review petition in the matter, holding that there was no need for a “roving inquiry” into the case.

On Monday, the bench of chief justice of India Uday Umesh Lalit and Justice S Ravindra Bhat declined to summon certain new materials, which allegedly pointed at the payment of 1.1 million Euros by French firm Dassault Aviation to an Indian middleman for facilitating the deal.

Advocate-petitioner ML Sharma quoted the April 2021 report by French website ‘Mediapart’ that claimed the money was paid for the manufacture of 50 large replica models of Rafale jets, which Sharma contended, would be a violation of the mandatory defence procurement procedure, laid down by the Union defence ministry, and would amount to a corrupt practice.

Submitting that he does not have access to the reports of the French anti-corruption agency Agence Française Anticorruption (AFA) that purportedly mention the payments to the middleman, Sharma requested the court to issue notice to the Centre and summon the requisite documents through issuance of letters rogatory.

The bench, however, remained unimpressed with the plea. “We do not find any merit in the petition. The matter has already been looked into by three-judge benches. We are not entertaining this,” it told Sharma.

To this, Sharma said that corruption in a contract of this nature should not be allowed and that the court required to interfere.

“We agree with the proposition in general, but it does not mean that we have to go into the same issue multiple times…Everything has to be looked on the basis of facts and circumstances of each case,” the bench responded.

Sharma, eventually, requested the court to allow him to withdraw the petition in view of the bench’s indisposition. The court allowed the lawyer to withdraw his plea but refused to say anything on the liberty that Sharma wanted regarding his approaching the Central Bureau of Investigation (CBI) with a complaint in the matter. “We are not going to say anything on the CBI. Everyone has the liberty…” it told Sharma while drawing the proceedings to a close.

The NDA’s decision to enter a $8.7 billion government-to-government deal with France to buy 36 Rafale warplanes made by Dassault Aviation was announced in April 2015, with an agreement signed a little over a year later. This replaced the previous United Progressive Alliance regime’s decision to buy 126 Rafale aircraft, 108 of which were to be made in India by the state-owned Hindustan Aeronautics Ltd.

The deal courted controversies with the Opposition, led by the Congress, claiming that the price at which India is buying Rafale aircraft now is ₹1,670 crore per jet, three times the price of ₹526 crore, the initial bid by the company when the UPA was trying to buy the aircraft. It has also claimed the previous deal included a technology transfer agreement with Hindustan Aeronatics Limited (HAL).

Apart from pricing and other terms of the deal, the Opposition also questioned the offset deals signed by Dassault with the Anil Ambani-owned Reliance Group, alleging favouritism. The Congress claimed the earlier deal was scrapped and a new one signed just to provide Anil Ambani the opportunity for an offset deal. Both, the government and Reliance, have repeatedly denied these claims.

A spate of writ petitions, including the ones by ML Sharma, former union ministers Yashwant Sinha and Arun Shourie, along with activist-lawyer Prashant Bhushan, were moved in the Supreme Court in 2018 against the sanctity of the deal.

By a judgment in December 2018, a three-judge bench dismissed the petitions, noting it found no irregularities in matters of decision-making, pricing procurement and selection of offset partners. The court had added that the perception of individuals could not become the base of a fishing and roving enquiry in the matters of defence procurements and that the country could not afford to be lacking in any manner when it comes to defence.

Later, Sinha, Shourie and Bhushan filed a review petition, alleging that the 2018 judgment relied upon patently incorrect claims made by the government in an unsigned note given in a sealed cover to the Supreme Court. However, in November 2019, the court rejected the review plea, affirming the clean-chit to the government.

Subsequently, ‘Mediapart’ came out with a report, claiming Dassault Aviation paid 1 million Euros to an Indian middleman, which formed the basis for Sharma to move the top court yet again.