K.M. Joseph JUDGMENT
Ranjan Gogoi, C.J.I.
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 question, which has been sought to be challenged, has its origins in the post-Kargil 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 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 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 fly-away 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, 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 L-I 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 Indo-French joint statement, for acquisition of 36 Rafale Jets in fly-away 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 Inter-Ministerial Consultations with the approval 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 23rd 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 m........