To begin with, it has to be appreciated, applauded and admired that after a long spell of time we finally see that the Supreme Court which is the top court of India has finally in the latest landmark case titled State
Without mincing any words, the Supreme Court took to task the Madhya Pradesh High Court for quashing the criminal proceedings against the accused on the ground of compromise between the parties. The Apex Court Bench very categorically and clearly held that, “We are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original complainant and the accused have settled the dispute.” Very rightly so!
Going into the nitty-gritty of the present case, it is then pointed out in para 2 that, “That the respondent No. 5 herein-the original Complainant one Birbal Sharma filed a complaint against Respondent Nos. 1 to 4 herein-the original Accused for the offences under Sections 307, 294 read with Section 34 of the IPC. That the said complaint was registered as Crime No. 23 of 2013 at the Police Station Maharajpur, District Gwalior. It appears that the original Accused filed an application for bail which came to be rejected by the learned Sessions Court and, thereafter, the original Accused approached the High Court by filing the Miscellaneous Criminal Case No. 6075 of 2013 under Section 482 of the Cr.PC and requested to quash the criminal proceedings on the ground that the accused and the original Complainant have settled the dispute amicably. That the original Complainant submitted his affidavit stating that he has amicably settled the subject-matter of the crime with the original Accused and that he has no objection for dropping the criminal proceedings. That, by the impugned judgment and order, the High Court in exercise of power under Section 482 of the Cr.PC has quashed the criminal proceedings against the original Accused which were for the offences under Sections 307, 294 read with Section 34 of the IPC, solely on the ground that the original Complainant and Accused have settled the dispute and the original Complainant does not want to prosecute the accused and therefore, there is no chance of recording conviction against the accused persons. At this stage, it is required to be noted that the said application was opposed by the State observing that the offences alleged against the accused are non-compoundable offences and therefore, even if there is any settlement between the Complainant and the Accused, the complainant cannot be quashed. However, despite the above, the High Court quashed the criminal proceedings against the original Accused on the ground that there is a settlement between the Complainant and the original Accused and the original Complainant does not want to prosecute the accused further.”
More importantly, para 3.1 then clarifies that, “It is required to be noted that the original Accused was facing the criminal proceedings under Sections 307, 294 read with Section 34 of the IPC. It is not in dispute that as per Section 20 of the Cr.PC offences under Sections 307, 294 read with Section 34 of the IPC are non-compoundable. It is also required to be noted that the allegations in the complaint for the offences under Sections 307, 294 read with Section 34 of the IPC are, as such, very serious. It is alleged that the accused fired twice on the complainant by a country-made pistol. From the material on record, it appears that one of the accused persons was reported to be a hard core criminal having criminal antecedents. Be that as it may, the fact remains that the accused was facing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC and that the offences under these sections are not non-compoundable offences and looking to the serious allegations against the accused, we are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute. At this stage, the decision of this Court in the case of Gulab Das and Ors. V. State of M.P. (2011) 12 SCALE 625 is required to be referred to. In the said decision, this Court has specifically observed and held that, despite any settlement between the Complainant on the one hand and the accused on the other, the criminal proceedings for the offences under Section 307 of the IPC cannot be quashed, as the offence under Section 307 is a non-compoundable offence. Under the circumstance, the impugned judgment and order passed by the High Court quashing the criminal proceedings against the original Accused for the offences under Sections 307, 294 read with Section 34 of the IPC cannot be sustained and the same deserves to be quashed and set aside.”
Finally, it is then held in para 4 that, “In view of the above and for the reasons stated above, the present appeal is allowed. The impugned judgment and order passed by the High Court in Miscellaneous Criminal Case No. 6075 of 2013 is hereby quashed and set aside. Consequently, the criminal proceedings being Crime No. 23 of 2013 under Sections 307, 294 read with Section 34 of the IPC registered at Police Station Maharajpur, District Gwalior be proceeded further in accordance with law and on its own merits.”
All said and done, it is a commendable judgment which makes it absolutely clear that offences under Section 307 of the IPC cannot be quashed on the basis of settlement between the parties. Attempt to murder as entailed in Section 307 of the IPC is a very serious offence and so there can be no question of any compromise on it under any circumstances! This is exactly what the Hon’ble Supreme Court has laid down also so succinctly in this landmark case. Any dilution in this under any circumstances is completely unacceptable. This must always be ensured by all the courts from top to bottom always as has very rightly been held also in this landmark and laudable case!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
It has to be stated right at the outset that in a landmark judgment titled Rajendra Pralhadrao Wasnik v State of Maharashtra in Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011 delivered on December 12, 2018 which is certainly going to be a trendsetter in the time to come, a three Judge Bench of the Supreme Court comprising of Justice Madan B Lokur while authoring this landmark judgment for himself, Justice S Abdul Nazeer and Justice Deepak Gupta clearly and convincingly held that criminals are also entitled to life of dignity and probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. We thus see that pertinent issues are discussed on ‘sentencing’ which shall be discussed indepth now in the coming paragraphs. It will help us better understand and appreciate the intricacies of law!
To be sure, this landmark and laudable judgment begins at the outset by first and foremost stating explicitly in para 1 that, “ ‘Sentenced to death’ – these few words would have a chilling effect on anyone, including a hardened criminal. Our society demands such a sentence on grounds of its deterrent effect, although there is no conclusive study on its deterrent impact. Our society also demands death sentence as retribution for a ghastly crime having been committed, although again there is no conclusive study whether retribution by itself satisfies society. On the other hand, there are views that suggest that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored. There is also a view that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime.” Absolutely right! What wrong has the top court said? Nothing wrong!
While buttressing its stand as spelt out in para 1 and going ahead, it is then observed in para 2 that, “These conflicting views make it very difficult for courts to take a decision and without expert evidence on the subject, courts are ill-equipped to form an objective opinion. But, a Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 has thrown its weight behind a humanitarian approach and mandated consideration of the probability of reform or rehabilitation of the criminal and required the prosecution to prove that it was not possible for the convict to be reformed or rehabilitated. However, the Constitution Bench left open a corridor of uncertainty thereby permitting, in the rarest of rare cases, the pronouncement of a sentence of death. It is this paradigm that confronts us in these petitions.”
Background
Going forward, para 3 then elucidates the background of this landmark case. It says that, “The appellant is convicted for the rape and murder of a girl aged 3 years. The offence was committed in the intervening night of 2nd and 3rd March, 2007. On the basis of circumstantial evidence led by the prosecution, the appellant was found guilty of and convicted for offences punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007 by a judgment dated 6th September, 2008.”
Needless to say, it is then primarily pointed out in para 4 that, “With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. Thereafter, the learned Sessions Judge passed an order on 10th September, 2008 awarding the sentence of death to the appellant.” Para 6 then brings out that, “On an overall view of the circumstances of the case, the Sessions Judge concluded that any alternative option of punishment is unquestionably foreclosed and therefore the only sentence that could be awarded to the appellant is of capital punishment.”
Be it noted, para 7 then further goes on to mention that, “The appellant preferred an appeal against his conviction and sentence before the Bombay High Court being Criminal Appeal No. 700 of 2008. This was heard along with Criminal Confirmation Case No. 3 of 2008. Both these were taken up for consideration and the conviction was upheld and capital punishment awarded to the appellant was confirmed by the High Court by a judgment and order dated 26th March, 2009.”
It cannot be lost on us that it is then very rightly pointed out in para 29 that, “The result of the above discussion is that ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence upon execution, is irrevocable and irretrievable.”
No doubt, it is also then elegantly pointed out in para 30 that, “Insofar as the present case is concerned, learned counsel for the appellant did not lay much stress on commuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need not examine the nature of the crime and other factors or detain ourselves in this regard. We have referred to the various decisions cited by learned counsel only for completeness of the record and to reaffirm the view that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence.”
Reform, rehabilitation and re-integration into society
Simply put, it is then underscored in para 31 that, “The discussion on the reform or rehabilitation of a convict begins with the acknowledgement in Bachan Singh that the probability that a convict can be reformed and rehabilitated is a valid consideration for deciding whether he should be awarded capital punishment or life imprisonment. This Court has also accepted the view that it is for the State to prove by evidence that the convict is not capable of being reformed and rehabilitated and should, therefore, be awarded the death sentence.” It is then acknowledged in para 32 that, “This view has been accepted universally in all the decisions that were cited before us by learned counsel for the appellant.”
Truth be told, para 45 then makes it abundantly clear that, “The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.”
Having said this, it is then very rightly brought out in para 47 that, “Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana (2013) 2 SCC 452 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet “In the sentencing process, both the crime and the criminal are equally important.” Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.”
Continuing in the same vein, para 48 then states clearly that, “In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment.” Very rightly so! There can be no denying it!
For esteemed readers exclusive indulgence, it would be imperative to now mention what para 73 says. It explicitly states that, “It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to.”
As it turned out, we see that it is then observed in para 74 that, “Insofar as the present case is concerned, it has come on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved not guilty.”
Quite remarkably, it is then elucidated in para 75 that, “We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in haste in awarding a sentence in a case where he might be considering death penalty on the ground that any other alternative option is unquestionably foreclosed. The convict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure.” [Shakespeare’s Macbeth, Act IV, Scene I]”
Finally and most importantly, let us now discuss the concluding paras. Para 79 stipulates that, “Insofar as the present petition is concerned, the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purpose of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.” Lastly, para 80 then concludes by holding that, “For all these reasons, we are of opinion that it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but direct that he should not be released from custody for the rest of his normal life. We order accordingly.”
All said and done, it is a very progressive and humane judgment which accords the highest priority to even the right of criminal to lead a life of dignity and respect. It also lays down that the probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. It is very rightly held that, “A trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence.”
The Apex Court also commendably said that there were views that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored and that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime. Absolutely right! There can be no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh
To begin with, it has been a long and gruelling wait of 34 long years for the survivors of 1984 anti-Sikh riots to finally see one big leader Sajjan Kumar being sentenced to life term by Delhi High Court in a recent landmark judgment titled State Through CBI vs Sajjan Kumar & Ors in CRL.A. 1099/2013 reserved on 29th October 2018 and pronounced on 17th December 2018. This landmark and laudable judgment was authored by Justice Dr S Muralidhar of Delhi High court for himself and Justice Vinod Goel. But there is still a long way to go because many other big stalwarts of Congress party like Jagdish Tytler among others have always been under the scanner but have somehow managed to save themselves from the long arms of the law as the Akali leaders among others keep pointing out repeatedly!
At the outset, this historic judgment begins by bringing out that, “In the summer of 1947, during partition, this country witnessed horrific mass crimes where several lakhs of civilians, including Sikhs, Muslims and Hindus were massacred. A young poet, Amrita Pritam, who fled to this country with her two little children from Lahore was witness to the manifold tragedies during that perilous journey. She was moved to pen an ‘Ode to Waris Shah’ in which she spoke of the fertile land of Punjab having “sprouted poisonous weeds far and near” and where “Seeds of hatred have grown high, bloodshed is everywhere / Poisoned breeze in forest turned bamboo flutes into snakes / Their venom has turned the bright and rosy Punjab all blue.” The killings would continue in the streets of Delhi.
Thirty-seven years later, the country was again witness to another enormous human tragedy. Following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, on the morning of 31st October 1984 by two of her Sikh bodyguards, a communal frenzy was unleashed. For four days between 1st and 4th November of that year, all over Delhi, 2,733 Sikhs were brutally murdered. Their houses were destroyed. In the rest of the country too thousands of Sikhs were killed.
A majority of the perpetrators of these horrific mass crimes, enjoyed political patronage and were aided by an indifferent law enforcement agency. The criminals escaped prosecution and punishment for over two decades. It took as many as ten Committees and Commissions for the investigation into the role of some of them to be entrusted in 2005 to the Central Bureau of Investigation (CBI), 21 years after the occurrence.
The present appeals arise as a result of the investigation by the CBI into the killings of five Sikhs in the Raj Nagar Part I area in Palam Colony in South West Delhi on 1st and 2nd November 1984 and the burning down of a Gurudwara in Raj Nagar Part II. Six accused, including Sajjan Kumar a Congress leader who was a Member of Parliament at that time, were sent up for trial some time in 2010. Three years later, the trial court convicted five of the accused: three of them for the offences of armed rioting and murder and two of them for the offence of armed rioting. Sajjan Kumar stood acquitted by the trial Court of all offences. The convicted accused as well as the CBI appealed to this Court.
In the judgment that follows this Court has partly allowed CBI’s appeal and reversed the acquittal of Sajjan Kumar. This Court has convicted him for the offences of criminal conspiracy and abetment in the commission of the crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony, defiling and destruction of the Gurudwara by burning. Further while affirming the conviction and sentences awarded by the trial court to the other five accused, this Court has additionally convicted and sentenced them for the offence of criminal conspiracy to commit the aforementioned crimes.
The accused in this case have been brought to justice primarily on account of the courage and perseverance of three eyewitnesses. Jagdish Kaur whose husband, son and three cousins were the five killed; Jagsher Singh, another cousin of Jagdish Kaur, and Nirpreet Kaur who saw the Gurudwara being burnt down and her father being burnt alive by the raging mobs. It is only after the CBI entered the scene, that they were able to be assured and they spoke up. Admirably, they stuck firm to their truth at the trial.
This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact ‘crimes against humanity’. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done.”
Having said this, let us now turn to what the opening para i.e. para 1 of this landmark judgment says. It says that, “These appeals are directed against the judgment dated 30th April 2013 passed by the District & Sessions Judge, North-east District, Karkardooma Courts, Delhi (‘trial Court’) in SC No. 26/2010 arising out of FIR No. RC-SI-1/2005/S0024 registered at PS Delhi Cantonment acquitting Sajjan Kumar (Accused No. 1: ‘A-1’) of the offences of criminal conspiracy and abetment while, at the same time, convicting Balwan Khokar (‘A-2’), Mahender Yadav (‘A-3), Captain Bhagmal (Retd.) (‘A-4’), Girdhari Lal (‘A-5’), and Krishan Khokar (‘A-6’). The trial Court convicted A-2, A-4, and A-5 for the offences punishable under Sections 147, 148, and 302 read with 149 IPC. A-3 and A-6 were convicted for the offences punishable under Sections 147 and 148 IPC. By the order on sentence dated 9th May 2013, they have been sentenced in the following manner:
(i) For the offence punishable under Section 302 read with Section 149 IPC, A-2, A-4 and A-5 were sentenced to imprisonment for life along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo rigorous imprisonment (‘RI’) for six months;
(ii) For the offence punishable under Section 147 IPC, all five convicted accused were sentenced to two years’ RI along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo RI for six months;
(iii) For the offence punishable under Section 148 IPC, all five convicted accused were sentenced to three years’ RI along with payment of a fine of Rs. 1,000/- and in default of payment of fine, to undergo RI for six months.”
Needless to say, para 2 brings out that, “The Central Bureau of Investigation (‘CBI’) has filed Crl. A. 1099/2013 challenging the complete acquittal of A-1 and the acquittal of the other accused for the other charges framed against them. The complainant, Jagdish Kaur (PW-1), had also preferred Crl. A. 850/2013 against the acquittal of A-1 which was subsequently withdrawn, with this Court granting her liberty to address arguments in Crl. A. 1099/2013.” Para 3 then states that, “The convicted accused, have filed separate appeals. Crl.A.861/2013 has been preferred by A-2, Crl.A.715/2013 by A-3, Crl.A.851/2013 by A-4, Crl.A.710/2014 by A-5 and Crl.A.753/2013 by A-6.”
Charges framed against A-1
As it turned out, para 4 then elucidates that, “Four articles of charge were framed against A-1. First, he was charged with having committed the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC on account of entering into an agreement, on or about 31st October 1984, with A-2 to A-6 as well as Mala Singh, Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh, Raj Kumar @ Rajaram (all since deceased), and other known and unknown persons including police personnel to commit the following acts:
(i) Rioting,
(ii) Rioting armed with deadly weapon,
(iii) Murder,
(iv) Mischief causing damage,
(v) Mischief by fire with intent to destroy houses etc.,
(vi) House trespass in order to commit offence punishable with death,
(vii) Dacoity,
(viii) Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony,
(ix) Injuring or defiling place of worship with intent to insult the religion of Sikh community, and
(x) Making statements conducing to public mischief.
Going forward, para 5 then says that, “Secondly, A-1 was charged with being a principal offender who abetted and instigated the aforementioned co-accused persons in the wake of the assassination of Smt. Indira Gandhi to commit, in pursuance of the aforementioned conspiracy, offences punishable under Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC and thereby having committed the offence punishable under Section 109 IPC read with the aforementioned provisions of the IPC.”
To be sure, para 6 then adds that, “Thirdly, A-1 was charged with having delivered fiery/provocative speeches to the mob gathered at Raj Nagar, Palam Colony, Delhi Cantonment on 1st/2nd November 1984 and having instigated and promoted violent enmity against the Sikh community and disturbed harmony between the two religious groups/communities of the locality in retaliation of the assassination of Smt.Indira Gandhi, giving rise to feelings of enmity, hatred, and ill will between members of the non-Sikh and Sikh communities which was prejudicial to the maintenance of harmony and disturbed public tranquility and was thereby guilty of committing the offence punishable under Section 153A IPC.”
In the same vein, it is then pointed out in para 7 that, “Fourthly, A-1 was charged with having publicly made a statement on 1st/2nd November 1984, to wit, by asking members of the Jat community to not leave any Sikh or any other person who had given shelter to Sikhs alive, inciting the mob gathered there by delivering fiery/provocative speeches and was thereby guilty of committing the offence punishable under Section 505 IPC.”
Charges framed against A-2 to A-6
Of course, para 8 then stipulates that, “Nine articles of charge were framed separately against the five other accused, viz. A-2 to A-6. Firstly, they were charged in a manner similar to A-1 with commission, on or about 31st October 1984, of the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC.”
Moving ahead, para 9 then goes on to state that, “Secondly, they were charged with having been members of an unlawful assembly on 1st/2nd November 1984 in Raj Nagar, Palam Colony, Delhi Cantonment using force and violence in pursuance of the common object to loot, damage, and burn the properties of the Sikh community as well as to kill members of the Sikh community residing in the area in retaliation to the assassination of Smt. Indira Gandhi and were thereby guilty of commission of the offence punishable under Section 147 IPC. Thirdly, they were charged with commission of the aforementioned acts while being members of an unlawful assembly armed with guns, jellies, iron rods/pipes, lathis, kerosene oil, etc. and were thereby guilty of commission of the offence punishable under Section 148 IPC.”
As we see, it is then next pointed out in para 10 that, “Fourthly, they were charged with having committed, while being members of the aforementioned unlawful assembly, the murders of Kehar Singh son of Dhyan Singh, Gurpreet Singh son of Kehar Singh, Raghuvinder Singh son of Gurcharan Singh, Narender Pal Singh son of Gurcharan Singh, and Kuldeep Singh son of Hardev Singh and were thereby guilty of commission of the offence punishable under Section 302 read with Section 149 IPC. Fifthly, they were charged with committing mischief and causing loss and damage amounting to approximately Rs. 3,30,000/- while being members of the aforementioned unlawful assembly and were thereby guilty of commission of the offence punishable under Section 427 read with Section 149 IPC.”
Interestingly enough, para 11 then reveals that, “Sixthly, they were charged with committing mischief while being members of the aforementioned unlawful assembly by setting fire to a place of worship, viz. the Raj Nagar Gurudwara, as well as the dwelling houses H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Palam Colony, New Delhi and were thereby guilty of the commission of the offence punishable under Section 436 read with Section 149 IPC. Seventhly, they were charged with having committed house trespass while being members of the aforementioned unlawful assembly by entering H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Delhi Cantonment, which were the dwelling house of the five deceased persons, in order to commit the offence of murder which is punishable with death, and were thereby guilty of commission of the offence punishable under Section 449 read with Section 149 IPC.”
More importantly, para 12 then reveals that, “Eighthly, they were charged with having committed dacoity while being members of the aforementioned unlawful assembly in H.No.RZ-1/129 & RZ-15 which belonged to the deceased persons, and were thereby guilty of commission of the offence punishable under Section 395 read with Section 149 IPC. Lastly, they were charged with destroying/damaging/defiling a place of worship, i.e. the Raj Nagar Gurudwara held sacred by the Sikh community, while being members of the aforementioned unlawful assembly with the common intention of insulting the Sikh religion and were thereby guilty of commission of the offence punishable under Section 295 read with Section 149 IPC.”
Summary Of Findings
Most importantly, it is time now to focus on what the summary of findings are of the two Judge Bench of Delhi High Court in this landmark case. Para 368 states that, “The summary of conclusions arrived at by the Court is as under: -
(i) There was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted hereinabove. (Para 136)
(ii) There was an utter failure to register FIRs with respect to the five deaths that form the subject matter of the present appeals. The failure to record any incident whatsoever in the DDR and the lack of mention of PW-1“s statement therein, amongst other circumstances, established the apathy of the Delhi Police and their active connivance in the brutal murders being perpetrated. (Paras 146 and 149)
(iii) What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a “free for all” situation which persisted. The aftershocks of those atrocities are still being felt. (Para 152)
(iv) This was an extraordinary case where it was going to be impossible to proceed against A-1 in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed. Even the defence does not dispute that as far as FIR No. 416/1984 is concerned, a closure report had been prepared and filed but was yet to be considered by the learned MM. (Para 159)
(v) The argument that the CBI deliberately suppressed the fact of the pendency of the closure report in FIR No. 416/1984 is born out of sheer desperation. Even if FIR No. 416/1984 was not closed as “untraced”, the fact remains that there was no progress whatsoever in the said FIR. (Para 160)
(vi) PW-1 comes across as a fearless and truthful witness. Till she was absolutely certain that her making statements will serve a purpose, she did not come forward to do so. Nothing in the deposition of PW1 points to either untruthfulness or unreliability. Her evidence deserves acceptance. (Paras 219 and 220)
(vii) PW-4 is also definitely a witness in support of the case of the prosecution. (Para 232)
(viii) PW-6 was one of the persons who had suffered tragedies and had no reason to falsely implicate anyone. (Para 242)
(ix) The failure to examine important witnesses including PWs 3, 4, 6, 7, 9 and 12 by the Riot Cell of the Delhi Police and also the non-examination of Daljit Kaur and Harbhajan Kaur establishes that the Riot Cell did not carry out any genuine investigation. PW-1 was justified in not joining such an investigation. (Paras 280 and 281)
(x) The trial Court completely omitted to address the charge of conspiracy despite detailed arguments submitted by the CBI in that regard. There was a two-pronged strategy adopted by the attackers. First was to liquidate all Sikh males and the other was to destroy their residential houses leaving the women and children utterly destitute. The attack on the Raj Nagar Gurudwara was clearly a part of the communal agenda of the perpetrators. (Paras 288 and 294)
(xi) The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of crimes against humanity”. Cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere. (Paras 367.1 and 367.10)
(xii) Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. Decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither “crimes against humanity” nor “genocide” is part of our domestic law of crime. This loophole needs to be addressed urgently. (Para 367.6)
(xiii) The acquittal of A-1 by the trial Court is set aside. He is convicted of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295 and 153A(1)(a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs Crl.A. 1099/2013 & Connected Matters Page 201 of 203 punishable under Section 153A (1) (a)and (b) IPC. (Para 307)
(xiv) The convictions and sentences of A-2 to A-6 as ordered by the trial Court are affirmed. Additionally, each of them is convicted for the offence of criminal conspiracy punishable under Section 120B read with Sections 436, 295, and 153A (1) (a) and (b) IPC. (Paras 331, 356, 360 and 366)
Sentences
No less important is the sentencing part of this landmark judgment. Let us deal with it one by one. First and foremost, para 369 states that, “As far as A-1 is considered, he is sentenced as under:
(i) For the offence of criminal conspiracy punishable under Section 120B read with
(a) Section 302 IPC, to imprisonment for life, i.e. the remainder of his natural life,
(b) Section 436 IPC, to RI for 10 years and fine of Rs 1 lakh and in default of payment of fine to undergo simple imprisonment (SI) for 1 year;
(c) Section 153A(1)(a) and (b) IPC, to RI for three years; and
(d) Section 295 IPC, to RI for two years.
(ii) For the offence punishable under Section 109 read with Sections 302, 436, 153A, and 295 IPC to identical sentences as in (i) (a) to (d) above.
(iii) For the offence punishable under Section 153A(1)(a) and (b) IPC, to RI for three years.
All sentences shall run concurrently.
Be it noted, it is then directed in para 370 that, “The bail and surety bonds furnished by A-1 stand cancelled and he shall surrender not later than 31st December 2018, failing which he shall forthwith be taken into custody to serve out the sentences awarded to him. A-1 shall not from this moment till his surrender leave the NCT of Delhi in the meanwhile and shall immediately provide to the CBI the address and mobile number(s) where he can be contacted.”
All said and done, it is a landmark and laudable judgment but the victims of the 1984 anti-Sikh riots have had to wait for far too long more than 34 years which is most disgusting and disgraceful! Even now they have to fight a long legal battle in the Supreme Court! They must be given top priority and decided at the earliest! Nearly 3000 Sikhs being killed in Delhi alone and no one being hanged or even awarded life term until recently is a huge national shame for which both Centre and the judiciary are equally responsible for not doing enough to act swiftly and sternly against the powerful political offenders!
Before concluding, let me again remind esteemed readers what is so rightly pointed out in para 367.6 of this landmark judgment. It says that, “In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country’s partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984. There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. As these appeals themselves demonstrate, decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.” So this must be done at the earliest as has been very rightly pointed out by the Delhi High Court in this landmark judgment! There can be no denying it!
In conclusion, if there has to be respect for law in our country, the punishment for those indulging in such heinous crimes has to be swift and strict! Just because accused enjoys political patronage they should not be allowed to evade the due process of law as we have seen in many cases including this one also for many decades because this would tantamount to making a mockery of our legal system and due process of law which cannot be permitted to happen in our country under any circumstances because doing so would lead our country to anarchy, dictatorship and lawlessness! No one who indulges in crime should ever be allowed to get away under any circumstances.
It cannot be lost on us that in this 1984 anti-Sikh riots also there are many other big fishes who are still roaming free and they too must be brought to book and after following due process of law must be sent behind bars or to gallows which is the right place for them who mercilessly ensured the killings of thousands of Sikh men, women and even children without having any mercy on anyone! Can anyone deny this? Why have they been allowed to take law for granted? Why the killers were not sent to gallows promptly? Why even after killing of nearly 4000 Sikhs all over the country, no one has been hanged till now?
Bluntly put: What image does this send of India in abroad? That one can get away with doing anything provided one has the right connections and the right political patronage! This must end now once and for all! No one should be allowed to get away after committing crime of any kind! Only then will our image in international forum get strengthened which will not just garner more investment in India from other countries but also strengthen India’s demand for a permanent seat in the UN Security Council! Also, this will severely hamper hostile countries like Pakistan from easily misguiding young Sikh youths and they will also realize that in India no one who killed their near and dear ones are being spared or left scot free just because of their political connections! India must act tough now on killers and those who masterminded such mass killings must be now punished most swiftly and most strictly!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
In what has come as a big shot in the arm for the present ruling dispensation at the Centre led by PM Narendra Modi, the Supreme Court in its landmark judgment titled Manohar Lal Sharma vs Narendra Damodardas Modi & Ors in Writ Petition (Criminal) No. 225 of 2018 with W.P. (C) No. 1205/2018, W.P. (Crl) No. 297/2018 and W.P. (Crl) No. 298/2018 delivered on December 14, 2018 has dismissed a string of petitions seeking an independent probe into the 2015 Rafale deal, according it a clean chit in all respects – decision-making, pricing and procurement procedure. The Bench of Chief Justice of India Ranjan Gogoi and Justices SK Kaul and KM Joseph pronounced this landmark, laudable and excellent judgment on a batch of PILs by Advocates ML Sharma, Vineet Dhanda, Prashant Bhushan and former Union Ministers Arun Shourie and Yashwant Sinha and AAP MP Sanjay Singh for registration of FIR and Court-monitored investigation by CBI into corruption allegations in Rafale deal. All petty politics must now stop over Rafale deal and what the highest court of the land has held so unambiguously must be respected by all of us including the petitioners!
To begin with, para 1 sets the ball rolling by first and foremost pointing out that, “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.”
In retrospect, para 2 then brings out 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 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.”
To be sure, para 3 then brings out that, “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 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.”
More importantly, it is then brought out in para 4 that, “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 Reliance Group was the name suggested by the Government of India. This seems to have triggered of the writ petitions under consideration.
The first writ petition i.e. Writ Petition (Criminal) No. 225 of 2018 has been filed by one Shri Manohar Lal Sharma, a practicing lawyer of this Court. What is sought for in the said writ petition is registration of an FIR under relevant provisions of the Indian Penal Code, 1860 and a Court Monitored Investigation. The further relief of quashing the Inter-Governmental Agreement of 2016 for purchase of 36 Rafale Jets has also been prayed for.
Writ Petition (Civil) No. 1205 of 2018 has been filed by one Shri Vineet Dhanda claiming to be a public spirited Indian. The petitioner states that he was inspired to file the writ petition being agitated over the matter on the basis of the newspaper articles/reports.
The third writ petition bearing Writ Petition (Criminal) No. 297 of 2018 has been filed by one Shri Sanjay Singh, a Member of Parliament alleging illegality and non-transparency in the procurement process. The said writ petition seeks investigation into the reasons for “cancellation of earlier deal” and seeks a scrutiny of the Court into the alteration of pricing and, above all, how a ‘novice’ company i.e. Reliance Defence came to replace the HAL as the Offset partner. Cancellation of Inter-Governmental Agreement and registration of an FIR has also been prayed for.
The fourth and the last writ petition bearing Writ Petition (Criminal) No. 298 of 2018 has been filed by Shri Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan claiming to be public spirited Indians. They are aggrieved by non-registration of FIR by the CBI pursuant to a complaint made by them on 4th October, 2018 which complaint, according to the petitioners, disclose a prima facie evidence of commission of a cognizable offence under the provisions of the Prevention of Corruption Act, 1988. The prayer, inter alia, made is for direction for registration of an FIR and investigation of the same and submitting periodic status reports to the Court.”
It is then underscored in para 5 that, “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.”
Simply put, para 6 then stipulates that, “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.”
Broadly speaking, para 7 then makes the picture more clear by pointing out that, “Parameters of judicial review of administrative decisions with regard to award of tenders and contracts has really developed from the increased participation of the State in commercial and economic activity. In Jagdish Mandal vs State of Orissa and Ors, (2007) 14 SCC 517, this Court, conscious of the limitations in commercial transactions, confined its scrutiny to the decision making process and on the parameters of unreasonableness and mala fides. In fact, the Court held that it was not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review. The award of contract, being essentially a commercial transaction, has to be determined on the basis of considerations that are relevant to such commercial decisions, and this implies that terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or a class of tenderers. [See Maa Binda Express Carrier & Anr. Vs. North-East Frontier Railway & Ors. (2014) 3 SCC 760]. Para 8 then states explicitly that, “Various Judicial pronouncements commencing from Tata Cellular vs. Union of India (1994) 6 SCC 651, all emphasise the aspect that scrutiny should be limited to the Wednesbury Principle of Reasonableness and absence of mala fides or favouritism.”
Truth be told, para 9 then seeks to clarify that, “We also cannot lose sight of the tender in issue. The tender 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. This aspect was even emphasized in Siemens Public Communication Networks Pvt. Ltd. & Ors. (2008) 16 SCC 215. The triple ground on which such judicial scrutiny is permissible has been consistently held to be “illegality”, “irrationality” and “procedural impropriety”.”
As it turned out, para 11 then elucidates that, “It is our considered opinion/view that 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 before us, therefore, 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.”
Going forward, it is then observed in para 12 that, “Adopting such an approach, on 10th October, 2018 when the first two writ petitions were initially listed before the Court, the Court had specifically observed in its order that it is proceeding in the matter by requiring the Government of India to apprise the Court of the details of the steps taken in the decision making process notwithstanding the fact that the averments in the writ petitions were inadequate and deficient. The Court had also indicated that it was so proceeding in the matter in order to satisfy itself of the correctness of the decision-making process. It was also made clear that the issue of pricing or matters relating to technical suitability of the equipment would not be gone into by the Court. The requisite information was required to be placed before the Court by the Government of India in sealed cover. Before the next date of hearing fixed i.e. 31st October, 2018, the other two writ petitions came to be filed.”
Be it noted, it is then revealed in para 13 that, “On 31st October, 2018, the Court in its order had recorded that in none of the writ petitions the suitability of the fighter jets and its utility to the Indian Airforce had been called into question. Rather what was doubted by the petitioners is the bona fides of the decision-making process and the price/cost of the equipment at which it was proposed to be acquired.” Para 14 then states that, “Pursuant to the order dated 10th October 2018, a note in sealed cover delineating the steps in the decision-making process was submitted to the Court and by order dated 31st October 2018 this Court had directed that such of the information which has been laid before the Court, which can legitimately be brought into the public domain, be also made available to the petitioners or their counsels. Details with regard to the induction of the Indian Offset Partner (IOP), if any, was also required to be disclosed. The Court also directed that the details with regard to pricing; the advantages thereof, if any, should also be submitted to the Court in a sealed cover.”
Needless to say, para 15 then states that, “It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held, would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely, (i) the decision-making process; (ii) difference in pricing; and (iii) the choice of IOP.”
Decision Making Process
It cannot be lost on us that para 16 then spells out that, “The details of the steps in the decision-making process leading to the award of the 36 Rafale fighter aircrafts’ order have been set out in response to the order dated 10th October, 2018. The Government states that the DPP 2002 has been succeeded by periodical reviews in 2005, 2006, 2008, 2011, 2013 and 2016. The preamble to DPP has been referred to capture its essence, which emphasises that –
“Defence acquisition is not a standard open market commercial form of procurement and has certain unique features such as supplier constraints, technological complexity, foreign suppliers, high cost, foreign exchange implications and geo-political ramifications. As a result, decision making pertaining to defence procurement remains unique and complex.”
It also states that –
“Defence procurement involves long gestation periods and delay in procurement will impact the preparedness of our forces. The needs of the armed forces being a non-negotiable and an uncompromising aspect, flexibility in the procurement process is required, which has also been provisioned for.”
It is DPP 2013 which is stated to have been followed in the procurement in question.
It is no doubt true that paragraph 77 of the DPP 2013 reads as follows:
“77. This procedure would be in supersession of Defence Procurement Procedure 2011 and will come into effect from 01 June 2013. There are, however, cases which would be under various stages of processing in accordance with provision of earlier versions of DPP at the time of commencement of DPP-2013. The processing of these cases done so far under the earlier procedure will be deemed to be valid. Only those cases in which RFP is issued after 01 June, 2013, will be processed as per DPP-2013.”
In other words when it is stated that only those cases in which RFP is issued after 1st June 2013 will be processed as per DPP 2013, in this case where the RFP was issued much prior to 1st April 2013 and it was withdrawn, as already noted, in June 2015, a question may arise as to how it could be claimed that DPP 2013 was followed. We, however, also notice clause 75 of DPP 2013 which reads as follows:
“75. Any deviation from the prescribed procedure will be put up to DAC through DPB for approval.”
To put it gently, it is then observed in para 17 that, “Also, we notice that the official respondents have sought support from paragraph 71 of the DPP 2013. Para 71 of DPP 2013, in respect of the IGA has been referred to, which postulates possibilities of procurement from friendly foreign countries, necessitated due to geo-strategic advantages that are likely to accrue to the country. Such procurement would not classically follow the Standard Procurement Procedure or the Standard Contract Document, but would be based on mutually agreed provisions by the Governments of both the countries based on an IGA, after clearance from the Competent Financial Authority (hereinafter referred to as “CFA”). Of the total procurement of about Rs 7.45 lakh crores since 2002 under DPP, different kinds of IGAs, including Foreign Military Sales and Standard Clauses of Contract account for nearly 40%. With the object of promoting indigenization, a robust offset clause is said to have been included since 2005. As per the Defence Offset Guidelines of 2013, the vendor/Original Equipment Manufacturer (hereinafter referred to as “OEM”) is free to select its IOPs for implementing the offset obligation.”
It would be pertinent to mention here that while shedding light on the unresolved issues involved in procuring the 126 fighter aircrafts is concerned, para 18 states eloquently that, “As far as the endeavour to procure 126 fighter aircrafts is concerned, it has been stated that the contract negotiations could not be concluded, inter alia, on account of unresolved issues between the OEM and HAL. These have been set out as under:
“i) Man-Hours that would be required to produce the aircraft in India: HAL required 2.7 times higher Man-Hours compared to the French side for the manufacture of Rafale aircraft in India.
ii) Dassault Aviation as the seller was required to undertake necessary contractual obligation for 126 aircraft (18 direct fly-away and 108 aircraft manufactured in India) as per RFP requirements. Issues related to contractual obligation and responsibility for 108 aircraft manufactured in India could not be resolved.”
Truly speaking, para 19 then minces no words in clearly and convincingly pointing out that, “The aforesaid issues are stated to have been unresolved for more than three years. Such delay is said to have impacted the cost of acquisition, as the offer was with ‘in-built escalation’ and was influenced by Euro-Rupee exchange rate variations. The stalemate resulted in the process of RFP withdrawal being initiated in March 2015. In this interregnum period, adversaries of the country, qua defence issues, inducted modern aircrafts and upgraded their older versions. This included induction of even 5th Generation Stealth Fighter Aircrafts of almost 20 squadrons, effectively reducing the combat potential of our defence forces. In such a situation, government-to-government negotiations resulted in conclusion of the IGA for the supply of 36 Rafale Aircrafts, as part of a separate process. The requisite steps are stated to have been followed, as per DPP 2013. An INT (Indian Negotiating Team) was constituted to negotiate the terms and conditions, which commenced in May 2015 and continued till April 2016. In this period of time, a total of 74 meetings were held, including 48 internal INT meetings and 26 external INT meetings with the French side. It is the case of the official respondents that the INT completed its negotiations and arrived at better terms relating to price, delivery and maintenance, as compared to the MMRCA offer of Dassault. This was further processed for inter-ministerial consultations and the approval of the CCS was also obtained, finally, resulting in signing of the agreement. This was in conformity with the process, as per para 72 of DPP 2013.”
Of course, para 20 then adds that, “The petitioners, on the other hand, seek to question the very fulfillment of the prerequisites for entering into an IGA. The Government of France, giving onlya ‘Letter of Comfort’ and not a ‘Sovereign Guarantee’ has been questioned.”
Taking the argument of the petitioners forward, para 21 then brings out that, “It is a say of the petitioners that para 71 envisages three eventualities, where the question of entering into an IGA would arise, which have not arisen in the present case:
(a) Proven technology and capabilities belonging to a friendly foreign country is identified by our Armed Forces while participating in joint international exercises;
(b) Large value weapon system/platform in service in a friendly foreign country is available for transfer or sale normally at a much lesser cost; or
(c) Requirement of procuring a specific state-of-the-art equipment/platform where the Government of the OEM’s country might have imposed restriction on its sale and thus the equipment cannot be evaluated on ‘No Cost No Commitment’ basis.”
Now coming to one of the most important paras of this landmark judgment which vindicates Centre’s stand on Rafale deal, para 22 very clearly and categorically holds 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 a detailed scrutiny by the Court. We have been informed that joint exercises have taken place, and that there is a financial advantage to our nation. It cannot be lost sight of that these are contracts of defence procurement which should be subject to a different degree and depth of judicial review. Broadly, the processes have been followed. The need for the aircrafts is not in doubt. The quality of the aircraft is not in question. It is also a fact that the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RPF could have resulted in a contract is of no use. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP. We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126. We cannot possibly compel the Government to go in for purchase of 126 aircraft. This is despite the fact that even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircrafts. Our country can afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquired not only 4th Generation, but even 5th Generation Aircrafts, of which, we have none. It will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”
Going forward, para 23 then observes that, “We may also note that the process was concluded for 36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing was called into question, then. It is only taking advantage of the statement by the ex-President of France, Francois Hollande that these set of petitions have been filed not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decision-making process and pricing. We do not consider it necessary to dwell further into this issue or to seek clause-by-clause compliances.”
Pricing
On the issue of pricing, first and foremost the Apex Court Bench held in para 24 that, “The challenge to the pricing of the aircrafts, by the petitioners, is sought to be made on the ground that there are huge escalations in costs, as per the material in public domain, as found in magazines and newspapers. We did initially express our disinclination to even go into the issue of pricing. However, by a subsequent order, to satisfy the conscience of the Court, it was directed that details regarding the costs of the aircrafts should also be placed in sealed covers before the Court.”
To put things in perspective, it is then very rightly observed by the top court in para 25 that, “The material placed before us shows that the Government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries. The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereinafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament, and is in public domain. The Chief of the Air Staff is stated to have communicated his reservation regarding the weaponry which could adversely affect national security. The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience.”
To say the least, it is then clarified in para 26 that, “We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP as well as under the IGA. We have also gone through the explanatory note on the costing, itemwise.
Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircrafts. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package. It is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present. We say no more as the material has to be kept in a confidential domain.”
Offsets
To put it succinctly, para 27 then envisages that, “The issue of IOP is what has triggered this litigation. The offset contract is stated to have been governed by the Defence Offset Guidelines of DPP 2013. Two of the said contracts were signed with Dassault and M/s MBDA Missile Systems Limited on 23rd September, 2016, the same day on which the IGA was signed between the Government of India and the Government of France. These are the French industrial suppliers of the Aircraft package and Weapon Package respectively. There are stated to be no offset obligations in the first three years, but the offset obligations are to commence from October 2019 onwards.”
While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 28 then while shedding light on the complaint of the petitioners brings out that, “The complaint of the petitioners is that the offset guidelines contemplate that the vendor will disclose details about the Indian Offset partner however, in order to help the business group in India in question, an amendment was carried out in paragraph 8 of the Offset Guidelines that too with retrospective effect. By virtue of the said amendment it is contended that cloak of secrecy is cast about the Offset partner and the vendor is enabled to give the details at a much later point of time. It is contended, however, that other provisions of the Offset Guidelines remain unamended, and, therefore, Government cannot pretend ignorance about the Indian Offset partner as has been done in the affidavit filed. It is complained that favouring the Indian business group has resulted in offence being committed under the Prevention of Corruption Act.”
For esteemed readers exclusive indulgence, it must also be informed here that para 29 then discloses that, “As per clause 8 of DPP 2013, dealing with the processing of offset proposals, it has been stated in clause 8.2 as under:
“8. Processing of Offset Proposals
8.2 The TOEC (Technical Offset Evaluation Committee) will scrutinize the technical offset proposals (excluding proposals for Technology Acquisition by DRDO as per para 8.3) to ensure conformity with the offset guidelines. For this purpose, the vendor may be advised to undertake changes to bring his offset proposals in conformity with the offset guidelines. The TOEC will be expected to submit its report within 4-8 weeks of its constitution”.”
Having said this, let us now turn to para 30 which says that, “It has been categorically stated that the vendor/OEM is yet to submit a formal proposal, in the prescribed manner, indicating the details of IOPs and products for offset discharge. A press release in the form of a ‘Clarification on Offset Policy’, posted on 22nd September, 2018 has also been placed before us. Inter alia, it states that the Government reiterates that it has no role to play in the selection of the IOP. As per the Defence Offset Guidelines, the OEM is free to select any Indian company as its IOP. A joint venture is stated to have come into being between Reliance Defence and Dassault in February 2017, which is stated to be a ‘purely commercial arrangement’ between the two private companies. Media reports of February 2012 are stated to suggest that Dassault, within two weeks of being declared the lowest bidder for procurement of 126 aircrafts by the previous Government, had entered into a pact for partnership with Reliance Industries (Another business group) in the Defence sector. Dassault has also issued a press release stating that it has signed partnership agreement with several companies and is negotiating with over hundred other companies. As per the guidelines, the vendor is to provide details of the IOPs, either at the time of seeking offset credit or one year prior to discharge of offset obligation which would be due from 2020 onwards. The aforesaid press release is in conformity with the clause dealing with IOPs which reads as under:
“4. Indian Offset Partner
4.3 The OEM/vendor/Tier-1 sub-vendor will be free to select the Indian offset partner for implementing the offset obligation provided the IOP has not been barred from doing business by the Ministry of Defence.”
Now coming to para 31, it stipulates that, “Despite the aforesaid illustration, the petitioners kept on emphasising that the French Government has no say in the matter, as per media reports. It is also stated that there was no reason for Dassault to have engaged the services of Reliance Aerostructure Ltd., through a joint venture, when the company itself had come into being only on 24th April, 2015. The allegation, thus, is that the Indian Government gave a benefit to Reliance Aerostructure Ltd., by compelling Dassault to enter into a contract with them, and that too at the cost of the public enterprise, HAL.”
Now let us talk about para 32. It says: “It is no doubt true that the company, Reliance Aerostructure Ltd., has come into being in the recent past, but the press release suggests that there was possibly an arrangement between the parent Reliance company and Dassault starting from the year 2012. As to what transpired between the two corporate would be a matter best left to them, being matters of their commercial interests, as perceived by them. There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter. On the basis of materials available before us, this appears contrary to the clause in DPP 2013 dealing with IOPs which has been extracted above. Thus, the commercial arrangement, in our view, itself does not assign any role to the Indian Government, at this stage, with respect to the engagement of the IOP. Such matter is seemingly left to the commercial decision of Dassault. That is the reason why it has been stated that the role of the Indian Government would start only when the vendor/OEM submits a formal proposal, in the prescribed manner, indicating details of IOPs and products for offset discharge. As far as the role of HAL, insofar as the procurement of 36 aircrafts is concerned, there is no specific role envisaged. In fact, the suggestion of the Government seems to be that there were some contractual problems and Dassault was circumspect about HAL carrying out the contractual obligation, which is also stated to be responsible for the non-conclusion of the earlier contract.”
It is a no-brainer that para 33 while vindicating Centre’s position on rafale deal very clearly and convincingly points out that, “Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not. The point remains that DPP 2013 envisages that the vendor/OEM will choose its own IOPs. In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides. We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose the IOP does not rest with the Indian Government.”
Conclusion:
In conclusion, it is then observed in para 34 that, “In view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”
It must be revealed here that Centre has sought correction in para 25 of this landmark and laudable judgment which had stated that the pricing details were shared with the Comptroller and Auditor General of India and that the report was examined by the Public Accounts Committee. The Centre said the error in the Apex Court’s judgment was “perhaps on account of misinterpretation of a couple of sentences in a note” that was handed over to it in a sealed cover. The government said in an application to the court that, “The observations in the judgment have resulted in a controversy in public domain, and would warrant correction by the court in the interest of justice.” The government said in its original note submitted to the court, the word “is” had been replaced by the word “has been”, which created the confusion. The report of the CAG will be placed before the PAC as and when it is ready, the government said in the application.
All said and done, Opposition must refrain from making a political capital out of this small mistake which Centre has itself acknowledged and has sought correction also to it! There is no point in making a mountain out of a molehill! But it is the Opposition which must realize this and gracefully accept this landmark judgment!
No doubt, this landmark, laudable and extraordinary judgment must be truly respected by each and every Indian and we all should desist from making India a laughing stock in front of the world by crying “scam, scam and scam without giving any proof to substantiate it.” We all need to appreciate that the Supreme Court is the highest court of the land and its landmark and laudable judgment must be respected by Centre, Opposition and all of us in equal measure! Former UP CM Akhilesh Yadav very rightly and gracefully has accepted this landmark judgment of three-Judges Bench of the Apex Court and has refused to support the Congress demand for a JPC into it! Politics over defence deals is most deplorable and disgusting and it is our national security which suffers the most in this political one-upmanship game! How can any good Indian support it? All petty politics over it must stop and political interest must relinquish its prime position which must be replaced by national interest and it has to be above everything else if our nation is to progress and prosper in the real true sense! Is it a tall order? Certainly not!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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