Manohar Lal Sharma vs Narendra Damodardas Modi

MANOHAR LAL SHARMA …. PETITIONER(S)

VERSUS

NARENDRA DAMODARDAS MODI & ORS. … RESPONDENTS(S)

WITH

W.P.(C) NO.1205/2018

W.P. (CRL) NO.297/2018

W.P. (CRL) NO.298/2018

J U D G M E N T

RANJAN GOGOI, CJI

1. The issues arising in this group of writ petitions, filed

as Public Interest Litigations, relate to procurement of 36 Rafale

Fighter Jets for the Indian Airforce. The procurement in Signature Not Verified

question, which has been sought to be challenged, has its origins Digitally signed by CHETAN KUMAR Date: 2018.12.14 11:40:13 IST Reason: 2

in the post­Kargil experience that saw a renewed attempt to

advance the strategic needs of the armed forces of the country.

2. As far back as in the month of June of the year 2001,

an in­principle approval was granted for procurement of 126

fighter­jets to augment the strength of the Indian Airforce.

Simultaneously, a more transparent Defence Procurement

Procedure (“DPP”) was formulated for the first time in the year

2002. A robust ‘offset clause’ was included in the DPP in the

year 2005 so as to promote Indigenisation and to that effect

Services Qualitative Requirements (“SQRs”) were prepared in

June 2006. On 29th June 2007 the Defence Acquisition Council

(“DAC”) granted the “Acceptance of Necessity” for the

procurement of 126 Medium Multi Role Combat Aircrafts (for

short “MMRCA”) including 18 direct fly­away aircrafts

(equivalent to a single squadron) to be procured from the Original

Equipment Manufacturer (“OEM”) with the remaining 108

aircrafts to be manufactured by Hindustan Aeronautics Limited

(for short “HAL”) under licence, to be delivered over a period of 11

years from the date of signing. The bidding process commenced

in August 2007. Six (06) vendors submitted proposals in April, 3

2008. The proposals were followed by technical and field

evaluations; a Staff Evaluation Report and a Technical Oversight

Committee Report. All these were completed in the year 2011.

The commercial bids were opened in November, 2011 and M/s

Dassault Aviation (hereinafter referred to as “Dassault”) was

placed as the L­I sometime in January 2012. Negotiations

commenced thereafter and continued but without any final

result. In the meantime, there was a change of political

dispensation at the centre sometime in the middle of the year

2014.

3. According to the official respondents negotiation

continued. A process of withdrawal of the Request for Proposal

in relation to the 126 MMRCA was initiated in March 2015. On

10th April, 2015 an Indo­French joint statement, for acquisition of

36 Rafale Jets in fly­away condition through an Inter­

Governmental Agreement (hereinafter referred to as “IGA”), was

issued and the same was duly approved by the DAC. The

Request for Proposal for the 126 MMRCA was finally withdrawn

in June 2015. Negotiations were carried out and the process was

completed after Inter­Ministerial Consultations with the approval 4

of the Cabinet Committee on Security (for short “CCS”). The

contract along with Aircraft Package Supply Protocol; Weapons

Package Supply Protocol; Technical Arrangements and Offset

contracts was signed in respect of 36 Rafale Jets on 23 rd

September, 2016. The aircrafts were scheduled to be delivered in

phased manner commencing from October 2019.

4. Things remained quiet until sometime in the month of

September, 2018 when certain newspapers reported a statement

claimed to have been made by the former President of France,

Francois Hollande, to the effect that the French Government were

left with no choice in the matter of selection of Indian Offset

Partners and the Reliance Group was the name suggested by the

Government of India. This seems to have triggered of the writ

petitions under consideration.

The first writ petition i.e. Writ Petition (Criminal) No.225 of

2018 has been filed by one Shri Manohar Lal Sharma, a

practicing lawyer of this Court. What is sought for in the said

writ petition is registration of an FIR under relevant provisions of

the Indian Penal Code, 1860 and a Court Monitored

Investigation. The further relief of quashing the Inter­ 5

Governmental Agreement of 2016 for purchase of 36 Rafale Jets

has also been prayed for.

Writ Petition (Civil) No.1205 of 2018 has been filed by

one Shri Vineet Dhanda claiming to be a public spirited Indian.

The petitioner states that he was inspired to file the writ petition

being agitated over the matter on the basis of the newspaper

articles/reports.

The third writ petition bearing Writ Petition (Criminal)

No.297 of 2018 has been filed by one Shri Sanjay Singh, a

Member of Parliament alleging illegality and non­transparency in

the procurement process. The said writ petition seeks

investigation into the reasons for “cancellation of earlier deal” and

seeks a scrutiny of the Court into the alteration of pricing and,

above all, how a ‘novice’ company i.e. Reliance Defence came to

replace the HAL as the Offset partner. Cancellation of Inter­

Governmental Agreement and registration of an FIR has also

been prayed for.

The fourth and the last writ petition bearing Writ

Petition (Criminal) No.298 of 2018 has been filed by Shri 6

Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan

claiming to be public spirited Indians. They are aggrieved by non­

registration of FIR by the CBI pursuant to a complaint made by

them on 4th October, 2018 which complaint, according to the

petitioners, disclose a prima facie evidence of commission of a

cognizable offence under the provisions of the Prevention of

Corruption Act, 1988. The prayer, inter alia, made is for direction

for registration of an FIR and investigation of the same and

submitting periodic status reports to the Court.

5. Adequate Military strength and capability to

discourage and withstand external aggression and to protect the

sovereignty and integrity of India, undoubtedly, is a matter of

utmost concern for the Nation. The empowerment of defence

forces with adequate technology and material support is,

therefore, a matter of vital importance.

6. Keeping in view the above, it would be appropriate, at

the outset, to set out the parameters of judicial scrutiny of

governmental decisions relating to defence procurement and to

indicate whether such parameters are more constricted than

what the jurisprudence of judicial scrutiny of award of tenders 7

and contracts, that has emerged till date, would legitimately

permit.

7. Parameters of judicial review of administrative

decisions with regard to award of tenders and contracts has

really developed from the increased participation of the State in

commercial and economic activity. In Jagdish Mandal vs.

State of Orissa and Ors. 1 this Court, conscious of the

limitations in commercial transactions, confined its scrutiny to

the decision making process and on the parameters of

unreasonableness and mala fides. In fact, the Court held that it

was not to exercise the power of judicial review even if a

procedural error is committed to the prejudice of the tenderer

since private interests cannot be protected while exercising such

judicial review. The award of contract, being essentially a

commercial transaction, has to be determined on the basis of

considerations that are relevant to such commercial decisions,

and this implies that terms subject to which tenders are invited

are not open to judicial scrutiny unless it is found that the same

have been tailor­made to benefit any particular tenderer or a

1 (2007) 14 SCC 517 8

class of tenderers. [See Maa Binda Express Carrier & Anr. Vs.

North­East Frontier Railway & Ors. 2]

8. Various Judicial pronouncements commencing from

3, all emphasise the aspect that Tata Cellular vs. Union of India

scrutiny should be limited to the Wednesbury Principle of

Reasonableness and absence of mala fides or favouritism.

9. We also cannot lose sight of the tender in issue. The

tender is not for construction of roads, bridges, etc. It is a

defence tender for procurement of aircrafts. The parameter of

scrutiny would give far more leeway to the Government, keeping

in mind the nature of the procurement itself. This aspect was

even emphasized in Siemens Public Communication Networks

4. The triple ground Pvt. Ltd. & Anr. Vs. Union of India & Ors.

on which such judicial scrutiny is permissible has been

consistently held to be “illegality”, “irrationality” and “procedural

impropriety”.

2 (2014) 3 SCC 760 3 (1994) 6 SCC 651 4 (2008) 16 SCC 215 9

10. In Reliance Airport Developers (P) Ltd. vs. Airports

Authority of India & Ors. 5 the policy of privatization of strategic

national assets qua two airports came under scrutiny. A

reference was made in the said case to the commentary by

Grahame Aldous and John Alder in their book ‘Applications for

Judicial Review, Law and Practice’:

“There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non­justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the royal prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions Vs. Minister for the Civil Service [1985 AC 374: (1984) 3 WLR 1174 (HL): (1984) 3 All ER 935] this is doubtful. Lords Diplock, Scaman and Roskili (sic.)6 appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject­matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non­justiciable areas, for example, 5 (2006) 10 SCC 1 6 To be read as ‘Roskill’ 10

foreign affairs, but some are reviewable in principle, including where national security is not involved. Another non­justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest." [emphasis supplied]

11. It is our considered opinion/view that the extent of

permissible judicial review in matters of contracts, procurement,

etc. would vary with the subject matter of the contract and there

cannot be any uniform standard or depth of judicial review which

could be understood as an across the board principle to apply to

all cases of award of work or procurement of goods/material.

The scrutiny of the challenges before us, therefore, will have to be

made keeping in mind the confines of national security, the

subject of the procurement being crucial to the nation’s

sovereignty.

12. Adopting such an approach, on 10 th October, 2018

when the first two writ petitions were initially listed before the

Court, the Court had specifically observed in its order that it is

proceeding in the matter by requiring the Government of India to

apprise the Court of the details of the steps taken in the decision­

making process notwithstanding the fact that the averments in 11

the writ petitions were inadequate and deficient. The Court had

also indicated that it was so proceeding in the matter in order to

satisfy itself of the correctness of the decision­making process. It

was also made clear that the issue of pricing or matters relating

to technical suitability of the equipment would not be gone into

by the Court. The requisite information was required to be

placed before the Court by the Government of India in sealed

cover. Before the next date of hearing fixed i.e. 31 st October,

2018, the other two writ petitions came to be filed.

13. On 31st October, 2018, the Court in its order had

recorded that in none of the writ petitions the suitability of the

fighter jets and its utility to the Indian Airforce had been called

into question. Rather what was doubted by the petitioners is the

bona fides of the decision­making process and the price/cost of

the equipment at which it was proposed to be acquired.

14. Pursuant to the order dated 10th October 2018, a note

in sealed cover delineating the steps in the decision­making

process was submitted to the Court and by order dated 31 st

October 2018 this Court had directed that such of the

information which has been laid before the Court, which can 12

legitimately be brought into the public domain, be also made

available to the petitioners or their counsels. Details with regard

to the induction of the Indian Offset Partner (IOP), if any, was

also required to be disclosed. The Court also directed that the

details with regard to pricing; the advantages thereof, if any,

should also be submitted to the Court in a sealed cover.

15. It is in the backdrop of the above facts and the

somewhat constricted power of judicial review that, we have held,

would be available in the present matter that we now proceed to

scrutinise the controversy raised in the writ petitions which raise

three broad areas of concern, namely, (i) the decision­making

process; (ii) difference in pricing; and (iii) the choice of IOP.

Decision Making Process

16. The details of the steps in the decision­making process

leading to the award of the 36 Rafale fighter aircrafts’ order have

been set out in response to the order dated 10 th October, 2018.

The Government states that the DPP 2002 has been succeeded

by periodical reviews in 2005, 2006, 2008, 2011, 2013 and 2016. 13

The preamble to DPP has been referred to capture its essence,

which emphasises that –

“Defence acquisition is not a standard open market commercial form of procurement and has certain unique features such as supplier constraints, technological complexity, foreign suppliers, high cost, foreign exchange implications and geo­political ramifications. As a result, decision making pertaining to defence procurement remains unique and complex.”

It also states that –

“Defence procurement involves long gestation periods and delay in procurement will impact the preparedness of our forces. The needs of the armed forces being a non­negotiable and an uncompromising aspect, flexibility in the procurement process is required, which has also been provisioned for.”

It is DPP 2013 which is stated to have been followed in the

procurement in question.

It is no doubt true that paragraph 77 of the DPP 2013

reads as follows:

“77. This procedure would be in supersession of Defence Procurement Procedure 2011 and will come into effect from 01 June 2013. There are, however, cases which would be under various stages of processing in accordance with provision of earlier versions of DPP at the 14

time of commencement of DPP­2013. The processing of these cases done so far under the earlier procedure will be deemed to be valid. Only those cases in which RFP is issued after 01 June, 2013, will be processed as per DPP­ 2013.”

In other words when it is stated that only those cases in which

RFP is issued after 1st June 2013 will be processed as per DPP

2013, in this case where the RFP was issued much prior to 1 st

April 2013 and it was withdrawn, as already noted, in June

2015, a question may arise as to how it could be claimed that

DPP 2013 was followed. We, however, also notice clause 75 of

DPP 2013 which reads as follows:

“75. Any deviation from the prescribed procedure will be put up to DAC through DPB for approval.”

17. Also, we notice that the official respondents have

sought support from paragraph 71 of the DPP 2013. Para 71 of

DPP 2013, in respect of the IGA has been referred to, which

postulates possibilities of procurement from friendly foreign

countries, necessitated due to geo­strategic advantages that are

likely to accrue to the country. Such procurement would not

classically follow the Standard Procurement Procedure or the 15

Standard Contract Document, but would be based on mutually

agreed provisions by the Governments of both the countries

based on an IGA, after clearance from the Competent Financial

Authority (hereinafter referred to as “CFA”). Of the total

procurement of about Rs.7.45 lakh crores since 2002 under DPP,

different kinds of IGAs, including Foreign Military Sales and

Standard Clauses of Contract account for nearly 40%. With the

object of promoting indigenization, a robust offset clause is said

to have been included since 2005. As per the Defence Offset

Guidelines of 2013, the vendor/Original Equipment

Manufacturer (hereinafter referred to as “OEM”) is free to select

its IOPs for implementing the offset obligation.

18. As far as the endeavour to procure 126 fighter aircrafts

is concerned, it has been stated that the contract negotiations

could not be concluded, inter alia, on account of unresolved

issues between the OEM and HAL. These have been set out as

under:

“i) Man­Hours that would be required to produce the aircraft in India: HAL required 2.7 times higher Man­Hours compared to the French side for the manufacture of Rafale aircraft in India. 16

ii) Dassault Aviation as the seller was required to undertake necessary contractual obligation for 126 aircraft (18 direct fly­away and 108 aircraft manufactured in India) as per RFP requirements. Issues related to contractual obligation and responsibility for 108 aircraft manufactured in India could not be resolved.”

19. The aforesaid issues are stated to have been

unresolved for more than three years. Such delay is said to have

impacted the cost of acquisition, as the offer was with ‘in­built

escalation’ and was influenced by Euro­Rupee exchange rate

variations. The stalemate resulted in the process of RFP

withdrawal being initiated in March 2015. In this interregnum

period, adversaries of the country, qua defence issues, inducted

modern aircrafts and upgraded their older versions. This

included induction of even 5th Generation Stealth Fighter

Aircrafts of almost 20 squadrons, effectively reducing the combat

potential of our defence forces. In such a situation, government­

to­government negotiations resulted in conclusion of the IGA for

the supply of 36 Rafale Aircrafts, as part of a separate process.

The requisite steps are stated to have been followed, as per DPP

2013. An INT7 was constituted to negotiate the terms and 7 Indian Negotiating Team 17

conditions, which commenced in May 2015 and continued till

April 2016. In this period of time, a total of 74 meetings were

held, including 48 internal INT meetings and 26 external INT

meetings with the French side. It is the case of the official

respondents that the INT completed its negotiations and arrived

at better terms relating to price, delivery and maintenance, as

compared to the MMRCA offer of Dassault. This was further

processed for inter­ministerial consultations and the approval of

the CCS was also obtained, finally, resulting in signing of the

agreement. This was in conformity with the process, as per para

72 of DPP 2013.

20. The petitioners, on the other hand, seek to question

the very fulfilment of the prerequisites for entering into an IGA.

The Government of France, giving only a ‘Letter of Comfort’ and

not a ‘Sovereign Guarantee’ has been questioned.

21. It is a say of the petitioners that para 71 envisages

three eventualities, where the question of entering into an

IGA would arise, which have not arisen in the present case: 18

(a) Proven technology and capabilities belonging to a

friendly foreign country is identified by our Armed Forces while

participating in joint international exercises;

(b) Large value weapon system/platform in service in a

friendly foreign country is available for transfer or sale normally

at a much lesser cost; or

(c) Requirement of procuring a specific state­of­the­art

equipment/platform where the Government of the OEM’s country

might have imposed restriction on its sale and thus the

equipment cannot be evaluated on ‘No Cost No Commitment’

basis.

22. We have studied the material carefully. We have also

had the benefit of interacting with senior Air Force Officers who

answered Court queries in respect of different aspects, including

that of the acquisition process and pricing. We are satisfied that

there is no occasion to really doubt the process, and even if

minor deviations have occurred, that would not result in either

setting aside the contract or requiring a detailed scrutiny by the

Court. We have been informed that joint exercises have taken 19

place, and that there is a financial advantage to our nation. It

cannot be lost sight of, that these are contracts of defence

procurement which should be subject to a different degree and

depth of judicial review. Broadly, the processes have been

followed. The need for the aircrafts is not in doubt. The quality of

the aircraft is not in question. It is also a fact that the long

negotiations for procurement of 126 MMRCAs have not produced

any result, and merely conjecturing that the initial RFP could

have resulted in a contract is of no use. The hard fact is that not

only was the contract not coming forth but the negotiations had

come practically to an end, resulting in a recall of the RFP. We

cannot sit in judgment over the wisdom of deciding to go in for

purchase of 36 aircrafts in place of 126. We cannot possibly

compel the Government to go in for purchase of 126 aircraft.

This is despite the fact that even before the withdrawal of RFP, an

announcement came to be made in April 2015 about the decision

to go in only for 36 aircrafts. Our country cannot afford to be

unprepared/underprepared in a situation where our adversaries

are stated to have acquired not only 4 th Generation, but even 5th

Generation Aircrafts, of which, we have none. It will not be 20

correct for the Court to sit as an appellate authority to scrutinize

each aspect of the process of acquisition.

23. We may also note that the process was concluded for

36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing

was called into question, then. It is only taking advantage of the

statement by the ex­President of France, Francois Hollande that

these set of petitions have been filed, not only qua the aspect

which formed the statement, that is, the issue of IOPs but also

with respect to the entire decision­making process and pricing.

We do not consider it necessary to dwell further into this issue or

to seek clause­by­clause compliances.

Pricing

24. The challenge to the pricing of the aircrafts, by the

petitioners, is sought to be made on the ground that there are

huge escalations in costs, as per the material in public domain,

as found in magazines and newspapers. We did initially express

our disinclination to even go into the issue of pricing. However,

by a subsequent order, to satisfy the conscience of the Court, it

was directed that details regarding the costs of the aircrafts

should also be placed in sealed covers before the Court. 21

25. The material placed before us shows that the

Government has not disclosed pricing details, other than the

basic price of the aircraft, even to the Parliament, on the ground

that sensitivity of pricing details could affect national security,

apart from breaching the agreement between the two countries.

The pricing details have, however, been shared with the

Comptroller and Auditor General (hereinafter referred to as

“CAG”), and the report of the CAG has been examined by the

Public Accounts Committee (hereafter referred to as “PAC”). Only

a redacted portion of the report was placed before the Parliament,

and is in public domain. The Chief of the Air Staff is stated to

have communicated his reservation regarding the disclosure of

the pricing details, including regarding the weaponry which could

adversely affect national security. The pricing details are stated

to be covered by Article 10 of the IGA between the Government of

India and the Government of France, on purchase of Rafale

Aircrafts, which provides that protection of classified information

and material exchanged under the IGA would be governed by the

provisions of the Security Agreement signed between both the

Governments on 25th January, 2008. Despite this reluctance, the 22

material has still been placed before the Court to satisfy its

conscience.

26. We have examined closely the price details and

comparison of the prices of the basic aircraft along with

escalation costs as under the original RFP as well as under the

IGA. We have also gone through the explanatory note on the

costing, item wise.

Suffice it to say that as per the price details, the official

respondents claim there is a commercial advantage in the

purchase of 36 Rafale aircrafts. The official respondents have

claimed that there are certain better terms in IGA qua the

maintenance and weapon package. It is certainly not the job of

this Court to carry out a comparison of the pricing details in

matters like the present. We say no more as the material has to

be kept in a confidential domain.

Offsets

27. The issue of IOP is what has triggered this litigation.

The offset contract is stated to have been governed by the

Defence Offset Guidelines of DPP 2013. Two of the said contracts 23

were signed with Dassault and M/s MBDA Missile Systems

Limited on 23rd September, 2016, the same day on which the IGA

was signed between the Government of India and the

Government of France. These are the French industrial suppliers

of the Aircraft package and Weapon Package respectively. There

are stated to be no offset obligations in the first three years, but

the offset obligations are to commence from October 2019

onwards.

28. The complaint of the petitioners is that the offset

guidelines contemplate that the vendor will disclose details about

the Indian Offset partner however, in order to help the business

group in India in question, an amendment was carried out in

paragraph 8 of the Offset Guidelines that too with retrospective

effect. By virtue of the said amendment it is contended that

cloak of secrecy is cast about the Offset partner and the vendor is

enabled to give the details at a much later point of time. It is

contended, however, that other provisions of the Offset

Guidelines remain unamended, and, therefore, Government

cannot pretend ignorance about the Indian Offset partner as has

been done in the affidavit filed. It is complained that favouring 24

the Indian business group has resulted in offence being

committed under the Prevention of Corruption Act.

29. As per clause 8 of DPP 2013, dealing with the

processing of offset proposals, it has been stated in clause 8.2 as

under:

“8. Processing of Offset Proposals

8.2 The TOEC8 will scrutinize the technical offset proposals (excluding proposals for Technology Acquisition by DRDO as per para 8.3) to ensure conformity with the offset guidelines. For this purpose, the vendor may be advised to undertake changes to bring his offset proposals in conformity with the offset guidelines. The TOEC will be expected to submit its report within 4­8 weeks of its constitution.”

30. It has been categorically stated that the vendor/OEM

is yet to submit a formal proposal, in the prescribed manner,

indicating the details of IOPs and products for offset discharge. A

press release in the form of a ‘Clarification on Offset Policy’,

posted on 22nd September, 2018 has also been placed before us.

Inter alia, it states that the Government reiterates that it has no

role to play in the selection of the IOP. As per the Defence Offset

8 Technical Offset Evaluation Committee 25

Guidelines, the OEM is free to select any Indian company as its

IOP. A joint venture is stated to have come into being between

Reliance Defence and Dassault in February 2017, which is stated

to be a ‘purely commercial arrangement’ between the two private

companies. Media reports of February 2012 are stated to suggest

that Dassault, within two weeks of being declared the lowest

bidder for procurement of 126 aircrafts by the previous

Government, had entered into a pact for partnership with

Reliance Industries (Another business group) in the Defence

sector. Dassault has also issued a press release stating that it

has signed partnership agreements with several companies and

is negotiating with over hundred other companies. As per the

guidelines, the vendor is to provide details of the IOPs, either at

the time of seeking offset credit or one year prior to discharge of

offset obligation, which would be due from 2020 onwards. The

aforesaid press release is in conformity with the clause dealing

with IOPs which reads as under:

“4. Indian Offset Partner

4.3 The OEM/vendor/Tier­I sub­vendor will be free to select the Indian offset partner for implementing the offset obligation provided the IOP has not been barred from doing business by the Ministry of Defence.” 26

31. Despite the aforesaid illustration, the petitioners kept

on emphasising that the French Government has no say in the

matter, as per media reports. It is also stated that there was no

reason for Dassault to have engaged the services of Reliance

Aerostructure Ltd., through a joint venture, when the company

itself had come into being only on 24 th April, 2015. The

allegation, thus, is that the Indian Government gave a benefit to

Reliance Aerostructure Ltd., by compelling Dassault to enter into

a contract with them, and that too at the cost of the public

enterprise, HAL.

32. It is no doubt true that the company, Reliance

Aerostructure Ltd., has come into being in the recent past, but

the press release suggests that there was possibly an

arrangement between the parent Reliance company and Dassault

starting from the year 2012. As to what transpired between the

two corporates would be a matter best left to them, being matters

of their commercial interests, as perceived by them. There has

been a categorical denial, from every side, of the interview given

by the former French President seeking to suggest that it is the

Indian Government which had given no option to the French 27

Government in the matter. On the basis of materials available

before us, this appears contrary to the clause in DPP 2013

dealing with IOPs which has been extracted above. Thus, the

commercial arrangement, in our view, itself does not assign any

role to the Indian Government, at this stage, with respect to the

engagement of the IOP. Such matter is seemingly left to the

commercial decision of Dassault. That is the reason why it has

been stated that the role of the Indian Government would start

only when the vendor/OEM submits a formal proposal, in the

prescribed manner, indicating details of IOPs and products for

offset discharge. As far as the role of HAL, insofar as the

procurement of 36 aircrafts is concerned, there is no specific role

envisaged. In fact, the suggestion of the Government seems to be

that there were some contractual problems and Dassault was

circumspect about HAL carrying out the contractual obligation,

which is also stated to be responsible for the non­conclusion of

the earlier contract.

33. Once again, it is neither appropriate nor within the

experience of this Court to step into this arena of what is

technically feasible or not. The point remains that DPP 2013 28

envisages that the vendor/OEM will choose its own IOPs. In this

process, the role of the Government is not envisaged and, thus,

mere press interviews or suggestions cannot form the basis for

judicial review by this Court, especially when there is categorical

denial of the statements made in the Press, by both the sides.

We do not find any substantial material on record to show that

this is a case of commercial favouritism to any party by the

Indian Government, as the option to choose the IOP does not rest

with the Indian Government.

Conclusion:

34. In view of our findings on all the three aspects, and

having heard the matter in detail, we find no reason for any

intervention by this Court on the sensitive issue of purchase of

36 defence aircrafts by the Indian Government. Perception of

individuals cannot be the basis of a fishing and roving enquiry by

this Court, especially in such matters. We, thus, dismiss all the

writ petitions, leaving it to the parties to bear their own costs.

We, however, make it clear that our views as above are primarily

from the standpoint of the exercise of the jurisdiction under 29

Article 32 of the Constitution of India which has been invoked in

the present group of cases.

………….....................,,CJI [RANJAN GOGOI]

………….....................,,J.

[SANJAY KISHAN KAUL]

………….....................,,J.

[K.M. JOSEPH] NEW DELHI DECEMBER 14, 2018