The Tale of Two Judgments - Analysis of the Judgment in Vijay Mallya Extradition Case & Rafale PIL Case

The Tale of Two Judgments

Analysis of the Judgments in Vijay Mallya Extradition Case and Rafale PIL Case

By:

Vijay Sardana

Twitter: @vijaysardana

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Reading time: 6-8 minutes

This was an interesting week for all. As citizen of India, I had an opportunity to read both the judgments in full. My views are based on my understanding of the commercial contracts in technical subjects and process to be followed in legal cases while undertaking investigations, evidence and interrogation.

This analysis is done after a careful reading of both the judgments given by respective courts i.e. Vijay Mallya extradition case the by the district court in UK and Rafale PIL case, Supreme Court of India. Please note this analysis is not to pass any value judgment on any of Hon'ble Judges but purely an analysis what I expect in a judgement as a citizen of India.

Please keep in mind, the purpose of this article is purely academic and to do a comparative analysis of the two vital judgments.

At the outset, let me acknowledge that between the two, the drafting of judgement between the two cases, drafting of the judgement by the district court is far superior and convincing that the drafting of judgement done by the Hon'ble Supreme Court of India.

Vijay Mallya Extradition Case:

It was worth reading the order in this vital case.

The district court order very clearly mentions the following points in its judgement.

In fact, there is a proper content page of the judgement which helps in better readability of the case.

Important heading in the judgment are:

a.   Introduction to the case

b.   Issues raised by the petitioner

c.   Issues raised by the defence

d.   Background of the request

e.   Allegations made by petitioners

f.     Dramatis personae

g.   Evidence

                                         i.     Requesting state

                                       ii.     Admissibility of evidence

                                     iii.     Section of laws which are relevant in this case

h.   Prima face case

i.      Evidence by the Defence ( please note all were given in detail with all events in chronological sequence

j.      Summary of the evidence given the defence by the court

k.   Analysis and conclusion relating to the case

l.      Extraneous considerations like human rights, etc.

m.Evidence by the petitioners

n.   Findings

o.   Conclusions based on evidence

p.   Procedural requirements for the way forward

q.   The conclusion of the hearing 

This 79 page judgement is worth reading by every student of law and practitioner mainly to understand how all issues and doubts were handled in detail and with evidences before coming to the conclusion and hence judgment.

Rafale Deal Judgment:

Now, if you see the judgment of the Supreme court there is no mention of any of the sub-sections in the judgment.

It starts with narration from the Hon’ble Chief Justice of India, and then on it has the following heads:

1.   Decision-making process

2.   Pricing

3.   Offsets

4.   Conclusion

Inference: When the judgment is divided into various sub-heading the chances are every aspect will get due attention and it will be the duty of the judge to address all the issues in detail and judgment will look convening to all.

Now let us come to evidence and investigation:

In the case of Vijay Mallya Extradition case, the following evidence was mentioned and they all were called to present the factual position to the court.

The important parties whose name appeared during the course of the investigation and those who were invited to present the evidence were:

·      Mr Vijay Mallya and Kingfisher Management team

·      IDBI Management Team

·      Independent Financial Expert to explain various technical and financial aspects of airlines industry to the Hon'ble Court

·      The Government of India – via CBI

·      Independent Expert from University to explain the political and judicial system and its functioning in India to the court.

·      Even, Prison details, with supporting evidence, were asked to ensure Human rights are not violated. even after extradition.

Important: Please note the court acknowledged its a limitation on various specific legal, social and technical aspects of Indian political and legal systems. To ensure justice, Court called independent experts and supporting evidence to understand facts before passing the judgment.

Now let us come to Rafale deal:

Rafale deal is a highly politically sensitive deal like any defence deal in the history of India and globally.

Defence is one sector wherein the name of security and people try to refrain from asking hard questions. Anyone who goes into probing mode, it is considered as anti-national activity. That is why many dictators were always from either armed forces or supported by armed forces because people prefer not to question armed forces and their intention.

On the other side, in the name of confidentiality and secrecy, defence deals were always controversial around the world because of very high-value deals and there is no effortless way to compare the two different machines. Many countries are trying to develop accountability systems to ensure that defence purchases are not based on any corrupt practices. Still, the work is in progress.

Judgment on Rafale deal from Supreme Court:

When you read the judgement the following issues are raised in the judgement to justify the change in the deal:

1.Request for Proposals

2. Two agreements were signed not one:

a. Aircraft Package Supply Protocol

b. Weapons Package Supply Protocol

3. Defence Procurement Process

4. Off-set clause

In the judgement, Hon’ble judges mentioned following terms, but I am not sure what was the reason not to mention the outcome of the interaction on these issues and with the agencies mentioned, because judgement is silent on the same.

Who are “Friendly Foreign Countries”?

In para17, the court mentioned the friendly foreign countries. According to information available, all the potential suppliers of the aircraft those who participated in the tender are from friendly foreign countries only because we are still dealing in critical defence supplies with them on defence matter on regular basis with these countries. The companies were from USA, EU Consortium, France, Sweden, Russia. The six firms which were competing for the IAF contract worth billions of dollars are Boeing's F/A-18E/F Super Hornet, Lockheed Martin's F-16 Fighting Falcon, Dassault Aviation's Rafale, Eurofighter Typhoon, Saab's Gripen and Russian United Aircraft Corporation's MiG-35.

So, what is the significance of the term “Friendly Foreign Countries” in this deal, courts have not clarified this point in the judgement?

Para 18: HAL required 2.7 times higher manhours compared to the French side. 

Was HAL called to clarify this point or it was based on outsiders’ assessment? What is the selection criteria for Off-set partners by Rafale? This point is not clear in the judgment.

Para 19: Delay in the acquisition was impacted the acquisition cost due to Foreign exchange variation:

The fact is the cost of foreign exchange rates of Euro-Rupee are available on the internet the difference is hardly 1.5 to 2% between June ’2012 and march ‘2015. Should we assume that difference in the cost is only 2%, what was negotiated by UP government. This government is claiming it is much less than what UPA has negotiated. In that case, this argument that foreign exchange variation has hiked the price does not hold good. Both cannot be true. The court should have clarified this point?

Para 19: Change in a number of aircraft means new contract as per the contract laws:

According to Contract laws, any counter offer or change in parameter means a new contract. What should be the process to initiate the procurement with a new contract?  Was that process followed? Courts have not cleared this doubt in the judgement.

Para 19: Official response is the INT completed its negotiation and arrived at better terms relayed to price, delivery and maintenance as compared to MMRCA offer of Dassault.  

This itself was questioned by petitioners, Courts have not answered which all proof were used to conclude that this statement was true?

The government of the day and inter-ministerial consultation within the same Government, Cabinet Committee on Security of the same government under the same regime are all conflict of interest in this case. They must agree with each other to ensure collective responsibility. They must talk in the same language. In fact, this was the main issue of corruption in Coal and Telecom scam itself that all agreed to the wrong decisions of the administrative ministries.

Para 21(b) – Without comparing the details how we can come to this conclusion. In fact, all the participating companies were from the friendly countries only.

Para 21(b): When there is “No Cost-No comparison” then the claim that it is better to deal does not make any sense.

Para 22: Courts have not clearly mentioned which evidence or documents of processes used and what gave them comfort that process was followed properly. At least courts can also mention the name of document or name of the process followed.

Para 22: Court has also not clarified about whether Air Force officers called for interaction were in service or they were retired or both.

Para 22: We have been informed that Joint exercises have taken place and there is a financial advantage to our nation. This statement should be quantified to provide comfort to the reader of the judgement.

Para 22: Clearly says that purchase of 36 aircraft was decided in place of 126. No reason was given by the government. After all, if 126 aircraft were required for national security, how 36 will ensure national security? From the judgement, it appears that the Court has not even asked the government this question. In fact, Court can always ask the question and can reproduce the response to know the facts.

Para 23: Ex-President of France raised some issues which led to litigations. In the eyes of the court, are these statements unreliable or not trustworthy? Court says we are not interested in going into the detail. The fact is a statement of EX-president is the most important evidence in the whole controversy and courts are not even willing to consider this vital evidence. The reason for the same is also not given in the judgement. As a citizen of India, I expected to know the significance of the statement of France ex-President who was a key person in this deal.

Para-24: Courts says were not keen to go into the price issues, but later asked to submit in a sealed cover. Why courts were not keen to verify the facts about escalation, even with revised specifications. At least percentages or any other parameter can be asked if not absolute numbers. After all, the public was keen to know what is happening in the name of secrecy and national security when we all know historically all major corruption cases in the country had these two dimensions. If tomorrow a government changes, all these will be known to all sides of the parliament. Will the national security will be compromised?

Para 25: Court says all pricing details are shared with CAG and examined by PAC. Why Courts have not asked the details of the covering letter or communication between the Government and CAG and PAC, if not the full report.

CAG and PAC both share their document in public, why the Supreme Court of India was denied the same documents?

Para 25: Chief of Air Staff has communicated the reservations about the price disclosure. What is his interest in pricing issue because after all, this is taxpayers’ money which is going to air force. What is the opinion of other present and former chief of defence forces on this? Why court has not asked and clarified the issue?

Para 26: It says judges have examined the prices details along with cost escalations but not gone into details due to confidentiality. It means one thing is clear the cost is higher than was offered in the earlier deal. Reason and technicalities are separate issues. The court can always ask comparative analyses why the additional price was paid and make a note in the judgement about their own comfort that they are convinced based on facts and evidence.

Indian Off-set partners:

Even if the companies have the right to choose the OSP, will the Government of India remain silent and not intervene if the partner is wrong. If a partner is not competent, it may not be able to deliver when services are required. This is, in fact, the national security threat, not the price of the contract.

Para 27: There are two companies which signed offset clause. There is no clarity whether there is one off-set agreement between IOP and principals or more and of how much amount? What will be the role of OEM and IOP?

National Security and Contract Value Price:

Are we saying the in recent times, India signed defence deals with many countries related to defence suppliers, which were quoted in media? Are we saying this will lead to a compromise of national security?

If the price is the only parameter to know all the technical details of the contract, then it clearly shows people don’t understand how technical parameters are defined. If these aircraft and weaponry are customised for India, then the negotiated price is an insignificant parameter, because no one knows what the parameters are and what was negotiated technical requirement and we are paying for what.

Are we saying, when in the past we disclosed defence contracts values in media and in parliament, was that compromise to national security?

Courts will have to answer this point in future as well.

Conclusion:

As a concerned citizen of India, I am not getting clear about this crucial dispute in public forums around Rafale deal even by Supreme Court Intervention.

Supreme Court must be having more information than presented in the judgement.

On the other hand, Supreme Court always says that all the judgments from the Courts must be based on proper investigation and verification of all the evidence, courts must follow the due process before coming to conclusion and there must be speaking order so that there must be clear about the reason behind the judgement.

Unfortunate, as a citizen I find none of the issues which were raised by petitioners in the Supreme Court of India are given convincing answers, reasons can be any, mainly it is the name of national security.

In the name of national security, should we ignore the national laws and accountability how public money is used? If yes, then it is important that we should analyse national security should also be defined in a judicial manner.

That is why I am saying, the Judgement of District Court of UK is clearer and objective than the judgement of Supreme Court of India in these two vital cases which came in the gap of one week.

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