Supreme Courts Puts Rafale Controversy to Rest

                                                                 Parmanand Pandey

Rafale Fighter Jets deal case, decided by the Supreme Court, on 14^th December, the last working day before it was closed for the winter vacation has actually brought a sort of political tremor in the country. While on the one hand, the people of the country, by and large, and the Indian Air Force heaved the sigh of relief that the deal with the French Dassault company for the supply of the Rafale Fighter Jets has improved its fighting capacity. Another reason for the satisfaction has been that the security of the country has not at all compromised. On the other hand, however, it has sent some political parties into a tizzy, who wanted to make capital out this deal. This judgement of the Supreme Court has unequivocally vindicated the stand of the government, particularly of the Prime Minister Narendra Modi, that his government has acted above board. The government can also take pride that it has kept itself free from scams and scandals. There is no place for hanky-panky, the government can boast of, in its defence dealings.

It will be interesting to know that before the Rafale controversy, the issue of Bofors Guns had rattled the government of the Late Shri Rajiv Gandhi in the eighties. Although nobody had expressed any doubts over the quality of the Bofors Guns, which later proved its efficacy and excellence in the Kargil war, yet the allegations of underhand bribe payments to some influential persons in the government or having close links with the government proved disastrous for the Rajiv Gandhi government, which lost power in the hustings of 1989 general elections for the Lok Sabha. The conspectus of the Rafale case is that as far back as in the month of June of the year 2001, an in­-principle approval was granted for procurement of 126 fighter-­jets 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 29^th June 2007 the Defence Acquisition Council (DAC) granted the “Acceptance of Necessity” for the procurement of 126 Medium Multi-Role Combat Aircrafts (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 (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 vendors submitted proposals in April 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 was chosen 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. A process of withdrawal of the Request for Proposal in relation to the 126 fighter jets was initiated in March 2015. On 10^th April 2015 an Indo-­French joint statement, for the acquisition of 36 Rafale Jets in fly ­away condition through an Inter-Governmental Agreement was issued and the same was duly approved by the Defence Acquisition Council. The Request for Proposal for the 126 fighter jets was finally withdrawn in June 2015. Negotiations were again carried out and the process was completed after Inter­-Ministerial Consultations with the approval of the Cabinet Committee on Security. 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 aircraft were scheduled to be delivered in phased manner commencing from October 2019.

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 name of Reliance Group was suggested by the Government of India. This triggered the controversy resulting into the filing of the clutch of the writ petitions, civil as well as criminal both, seeking registration of the FIR against the Prime Minister Narendra Modi and quashing of the purchase of 36 Rafale Jets.

The judgement, of the three-judge bench comprising the CJI Ranjan Gogoi and the Justices Sanjay Kishan Kaul and K M Joseph, was written by the Chief Justice of India, said that, ‘adequate military strength and capability to discourage and withstand external aggression and to protect the sovereignty and integrity of India, 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. 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 and contracts, that has emerged till date, would legitimately permit.’

The verdict clarified that in such matters the Courts can only interfere when it is found that when there appears to be mala fide and blatant favouritism. The Court further said that ‘in matters of contracts, procurement, etc. would vary with the subject matter 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 the award of work or procurement of goods/material. The scrutiny of the challenges before the Court, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement is crucial to the nation’s sovereignty. Significantly, the writ petitions have not questioned the suitability of the fighter jets and its utility to the Indian Airforce. Rather what was doubted was the bona fides of the decision-making process and the price/cost of the equipment. The Apex Court observed that defence procurement involves long gestation periods and delay in procurement will certainly impact the preparedness of our forces. The needs of the armed forces are non-negotiable and uncompromising aspects. Therefore, flexibility in the procurement process is required, which has also been provisioned for in the procedure. The Court said that delays impact the cost of acquisition, as the offer was with ‘in-built escalation’ and was influenced by Euro-Rupee exchange rate variations.

The Supreme Court, in fact, gave a clean chit to the government by saying that, ‘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 detailed scrutiny by the Court.’ Most importantly, the Supreme Court observed that ‘we cannot sit in judgment over the wisdom of deciding to go in for the purchase of 36 aircraft in place of 126. We cannot possibly compel the Government to go in for the purchase of 126 aircraft. This is despite the fact that even before the withdrawal of Rafale Fighter Planes (RFP), an announcement came to be made in April 2015 about the decision to go in only for 36 aircraft. 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 5^th Generation Aircrafts, of which, we have none and hence, it will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.

The observation of the Court that the pricing details have been shared with the Comptroller and Auditor General and the report of the CAG has been examined by the Public Accounts Committee has, however, left the controversy simmering because the Chairman of the Public Accounts Committee, Mallikarjun Kharge has been saying all along that the government has lied to the Supreme Court as the pricing details were never placed before the Committee. The Court has taken such people to task, who do not go by facts but by perceptions. It said that perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters.

Nevertheless, the controversy does not seem to die down with regard to the pricing of the Rafale Jet fighters despite the unequivocal assertion of the Court such matters are very sensitive to the security of the country and they cannot be compromised. 

Witness Protection is Necessary for Fair Justice

                                                     Parmanand Pandey

The Supreme Court has again voiced its concern for the safety of witnesses, particularly in criminal cases.  The criminal justice is essentially an adversarial system, where the cases are decided on the basis of evidence, be it documentary or oral. Therefore, witnesses play a vital role in facilitating to arrive at correct findings. They are the backbones in the decision-making process.

In ‘Mahender Chawla and others vs Union of India and others’, the Supreme Court has said that whenever, in a dispute, the two sides come out with conflicting version, the witnesses become an important tool to arrive at right conclusions, thereby advancing justice in a matter. It is for this reason that the Legal philosopher Jeremy Bentham stated that “witnesses are eyes and ears of justice”.

A witness may be a partisan or interested witness but even then, his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. A witness is “a person whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”. The author of the judgement Justice A.K. Sikri has expressed his anguish over the pathetic condition of witnesses in the Indian Legal System. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing the life-threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of ‘Witness Protection Programme’ in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making a statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times, they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of the actual crime. They are not even suitably compensated for the loss of time and the expenditure towards conveyance etc.

In Swaran Singh vs. the State of Punjab, Justice Wadhwa had said the witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned until the witness is tired and will stop coming to court. Sometimes a witness is threatened, attacked, or even bribed. There is no protection to the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court. They are pulled out of the courtroom by the peon. After waiting for the whole day, he sees the matter is adjourned.

There is no proper place for him to sit and drink a glass of water. When he appears, he is subjected to prolong cross-examinations and cross-examinations. Even the qualified Doctors, who come to the courts to depose in medico-legal cases are meted out very shabby treatments as if they themselves are the accused persons For these reasons’ persons avoid becoming a witness and because of this administration of justice are hampered. The witnesses should, therefore, be paid immediately irrespective of the fact whether he is examined, or the matter is adjourned. The time has come now that all courts should be linked with each other through the computer. The Bar Council of India has to play important role in this process to put the criminal justice system on track. The liberal use of technology can go along way in keeping the witnesses from avoidable harassment. Their statements and cross-examination be executed from the safety their homes and workplaces. There is no need for them to make rounds of the courts.

The Apex Court said that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential. They terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.

One of the reasons may be that they do not want lock horns with criminals and influential persons by deposing against them because of threats to their lives, more so when the offenders are hardened criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. The State, therefore, has a definite role to play in protecting the witnesses. As a protector of its citizens, it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for the observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.

In one of the cases, the Supreme Court has said that the mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in a miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing.

In State v. Sanjeev Nanda, the Court reiterated the growing disturbing trend.  In ‘State of U .P. v. Ramesh Prasad Misra’ held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.. When the witnesses are not able to depose correctly in the court of law, it results in the low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is, for this reason, there has been a lot of discussion on witness protection and from various quarters. Demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.

In the cases of victims of terrorism and sexual offences against women and juveniles, the courts have to deal with a very vulnerable section of society, be they, victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal Code, such fear or danger to victims and witnesses may be more common and pronounced. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses must be free. then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.

Therefore, the paramount need is to have a witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system should concede. Live recording of the witnesses has become the need of the hour, which will reduce the difficulties of the witnesses and at the same time provide him/her adequate safety from the threat and intimidation of accused person. The statutory safety provision plus the use of modern technology can go a long way in providing the protection to the witnesses, which is necessary for the fair and unvitiated justice.

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