MANOHAR LAL SHARMA versus NARENDRA DAMODARDAS MODI & ORS.

Citation: [2018] 14 S.C.R. 840 · Decided: 14-12-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed
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840                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
MANOHAR LAL SHARMA
v.
NARENDRA DAMODARDAS MODI & ORS.
(Writ Petition (Crl.) No. 225 of 2018)
DECEMBER 14, 2018
[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL AND
K. M. JOSEPH, JJ.]
Constitution of India: Art 32 – Public interest litigation – Issue
relating to procurement of 36 Rafale Fighter Jets for the India
Airforce by Defence Ministry from France – Petitions seeking
registration of FIR, court monitored investigation into corruption
allegations in Rafale deal and quashing of Inter Governmental
Agreement of 2016 for purchase of Rafale Jets – Held: Interference
on the sensitive issue of purchase of defence aircrafts by the Indian
Government as regards the decision making process, difference in
pricing, and the choice of Indian Offset Partner-IOP not called for
– In such matters, perception of individuals cannot be the basis of
a fishing and roving enquiry by this Court – Court cannot sit as an
appellate authority to scrutinize each aspect of the process of
acquisition – Decision making process cannot be doubted – Minor
deviations even if have occurred, would not result in either setting
aside the contract or requiring a detailed scrutiny – Court would
not carry out a comparison of the pricing details – Said material
has to be kept in a confidential domain – In Defence Procurement
Procedure 2013, the role of the Government is not envisaged, thus,
mere press interviews or suggestions cannot form the basis for
judicial review, especially when there is a categorical denial by
both the sides – Also, no material to show that this is a case of
commercial favouritism to any party by the Government.
Judicial review: Governmental decisions relating to defence
procurement of aircrafts – Permissibility of judicial review – Held:
Extent of permissible judicial review in matters of contracts,
procurement, etc. varies with the subject matter of the contract and
there cannot be any uniform standard – Contracts of defence
procurement should be subject to a different degree and depth of
judicial review – Scrutiny of the challenges will have to be made
[2018] 14 S.C.R. 840
840
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keeping in mind the confines of national security, the subject of the
procurement being crucial to the nation’s sovereignty.
Dismissing the writ petitions, the Court
HELD: 1.1 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. 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 tender in issue 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. [Para 5, 6, 9][847-G-H; 848-A-B, F-G]
1.2 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,
thus, 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. [Para 11][849-G-H; 850-A]
Jagdish Mandal v. State of Orissa and Ors. (2007) 14
SCC 517 ; Maa Binda Express Carrier & Anr. v. North-
East Frontier Railway & Ors. (2014) 3 SCC 760 : [2013]
12 SCR 529 ; Tata Cellular v. Union of India (1994) 6
SCC 651 : [1994] 2 Suppl. SCR 122 ; Siemens Public
Communication Networks Pvt. Ltd. & Anr. v. Union
of India & Ors. (2008) 16 SCC 215 : [2008] 15 SCR
585 ; Reliance Airport Developers (P) Ltd. v. Airports
Authority of India & Ors. (2006) 10 SCC 1 : [2006] 8
Suppl. SCR 398 – referred to.
MANOHAR LAL SHARMA v. NARENDRA DAMODARDAS
MODI & ORS.
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842                    SUPREME COURT REPORTS
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