Debates in Any Decision Making Process: Why SC Found No Merit in Review Pleas Against Rafale Deal
The court said it cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained.
Illustration by Mir Suhail (News18.com)
The basic plea of the petitioners, which included Supreme Court advocate Prashant Bhushan and former union minister Yashwant Sinha and Arun Shourie, in the case was directions to file FIR in this case which would then begin an inquiry into the procurement of 36 Rafale jets from the French defence firm Dassault Aviation.
A bench led by Chief Justice Ran Gogoi in its order reiterated the stand it had made in its judgment on a similar issue, relating to the procurement of Rafale jets, in December last year, that the court did not find merit in launching a “roving and fishing enquiry” into the deal.
“The necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry,” the Supreme Court said in its Thursday judgment.
It went on to state, “We cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained.”
The court said as far as the aspect of pricing was concerned, it had satisfied itself with the material made available.
The CJI-led bench also dealt with the issue of discrepancies in the opinions expressed in the decision making that led to the procurement of the fighter jets, which the petitioners had highlighted in their plea.
The court said it appears the petitioners endeavoured to construe themselves as an appellate authority to determine each aspect of the contract and asked the court to do the same. “We do not believe this to be the jurisdiction to be exercised,” the apex court ruled.
“We 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.”
“It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process,” the court observed.
In the review pleas, the petitioners had cited leaked documents that stated that the defence ministry had in 2015 objected to “parallel negotiations” conducted by the Prime Minister’s Office with France. It had also quoted from a dissent note written by three senior defence ministry officials who were the domain experts on the seven-member Indian negotiating team.
It concluded with the three member bench stating that they were “of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.”
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