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Rafale Deal – Analysis of Petitions in the Supreme Court

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Rafale Review Petition Analysis

Shimla-A three judge bench of the Supreme Court unanimously has ruled as admissible the ‘secret’ documents, containing file notes of the Defence Ministry, that had been annexed to the review petition that was filed in the case relating to the purchase of the Rafale aircraft.

The documents were released by the newspaper ‘Hindu’ and state took an objection in the Supreme Court that such documents may not be allowed , however the Hon’ble court rejected the contention of the Government and stated that admissibility of the secret documents, including a claim of privilege under Section 123 of the Evidence Act which was misplaced.


Further, the Hon’ble Chief Justice in his Judgement with respect to publication of the documents in ‘The Hindu’ newspaper, reminded us of the consistent views of the Supreme Court in upholding the freedom of the press in a long line of decisions commencing from Romesh Thapar vs. State of Madras and Brij Bhushan vs. The State of Delhi.

This means that these documents will now be treated like any other document for admission and the court will have the power to look into them. The review petition will now be heard on merits.

What does this petition alleges and what will the Hon’ble Supreme Court now be adjudicating upon;

The procedure for purchasing defence equipment is elaborately laid down in a Defence Procurement Procedure document which has been amended from time to time. However broadly from 2001 till date, the PROCEDURES in place provide the following:

  1. The Services Head Quarters have to give their requirements for the quality and quantity of the equipment that they need. This is called the Services Qualitative Requirement (SQR)
  2. Thereafter the matter goes to a larger body called the Categorisation Committee which then decides whether the equipment could purchased/ made domestically or would have to be purchased from abroad or a combination of the two.
  3. Thereafter an even higher body called the Defence Acquisition Council (DAC) approves the quantity, quality and whether the equipment should be purchased/made domestically or purchased from abroad or a combination of the two. The DAC gives it’s approval called the Acceptance of Necessity.

It is only then that tenders are issued.

Facts

In 2007, after going through the above procedure tenders were issued by the Ministry of Defence for the purchase of 126 fighter aircrafts and it was specified in the Request for Proposal that 18 of these aircrafts would be purchased from abroad in a ‘fly-away’ condition and the remaining 108 would be manufactured in India in the factory of Hindustan Aeronautics Limited (HAL) with transfer of technology from the foreign vendor. Six companies had applied and after extensive trials by the Air Force two were short listed. After that the financial bids were opened and Dassault Company manufacturing the Rafale aircraft was declared the lowest tenderer and thereafter price negotiations began. These negotiations were at a very advanced stage (95% complete) by 25th march 2015.

Allegation

However within 15 days of this, the Prime Minister of India and the President of France announced a totally new deal jettisoning the virtually complete 126 aircraft deal and the Prime Minister on behalf of India agreed to purchase only 36 Rafale Aircrafts in a ‘fly-away’ condition without any transfer of technology and make in India. It later turned out that the new deal involved 50% of the value of the contract to be given as “offset contracts” to Indian companies and that the government informally told Dassault and the French government that the bulk of the offset contracts would have to be given to a company of Mr. Anil Ambani which had just been set up. When the final contract was signed after price negotiations, it transpired that the price of the aircraft had been increased to more than double to what was under consideration in the old deal of 126 aircrafts.

The Petitioners tried to file an FIR which was not registered by CBI. Ultimately, the petitioners filed the writ petition feeling aggrieved by this non-registration of FIR by the Central Bureau of Investigation (CBI) on a written complaint that was made to the CBI on the 4th of October, 2018 in relation to above-mentioned facts.

The Offences

According to the petition Offences under S. 7 and S. 13 of the Prevention of Corruption Act are made out, these have been elaborated below;

  • That high ranking public servants, unilaterally, in violation of all mandatory procedures, without obtaining any SQRs from the IAF, or any decision of the Categorisation Committee or any Acceptance of Necessity from the Defence Acquisition Council, entered into a Memorandum of Understanding with the French regarding purchase of just 36 Rafale aircrafts, all in a ‘fly away’ condition with no Transfer of Technology and no Make in India.
  • That they did so after virtually scrapping the earlier procurement process for 126 aircrafts, which had followed all due procedures, and was in accordance with the specifications of the Indian Air Force. In the process, all important strategic objectives of the earlier procurement procedure that were on the basis of institutions authorised to do so, were eschewed. Consequently, just 36 aircrafts were arbitrarily purchased, with no make in India and no Transfer of Technology against the determination of IAF Services Head Quarters, the Categorisation Committee and the Defence Acquisition Council.
  • That under the earlier deal, HAL was to be the production agent for Dassault in India and there was no scope for Mr. Ambani to be a offset partner.
  • That this act of unilaterally changing the deal by bypassing all laid down procedures, was to ensure that Mr. Ambani could be brought in as an offset partner for the purpose of obtaining for him offsets worth thousands of crores.
  • That the French government as well as the Dassault Aviation company were told that this contract of 36 ‘ready to fly’ aircraft will be only given to Dassault Aviation, if they gave the major part of the offset contracts in this deal to Mr. Anil Ambani’s company.
  • That Mr. Anil Ambani’s recently incorporated company had no credibility or even eligibility to be an offset partner for Dassault. That therefore, the thousands of crores to be received by RAL through the offset contract are substantially in the nature of commissions.
  • That the price of the aircrafts in the new deal has been increased from approximately 700 crores per aircraft to over 1600 crores per aircraft without any legitimate public interest.
  • That the facts mentioned above show two things; (a) that Indian public servants asked Dassault to give the major offset contracts in this deal to Anil Ambani’s defence company as a condition for getting the contract; & (b) that the offset contracts worth tens of thousands of crores which have been awarded to Reliance are not and cannot be considered to be legal remuneration for services actually rendered or services which could credibly be rendered by Reliance Aerostructure Limited.
  • Therefore, these offset contracts and the payments made/to be made for them are at least in large part in the nature of undue advantage/illegal gratification/commissions to be paid to the Reliance under this deal. It is clear therefore that public servants in India have abused their positions to give an undue advantage to Anil Ambani’s Reliance company as a consideration for the discharge of his function as a public servant to award the contract of purchasing 36 Rafale jets from Dassault in a ‘fly away’ condition.

The Supreme Court can now order a CBI investigation if it finds merit in the claims of the petitioners.

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Deven Khanna is a Lawyer practising at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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Apple Industry in Himachal Facing a Headwind From an Unlikely Facet

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Apple Season Traffic in Shimla 3

Shimla-Amidst manifest slowdown in the economy, 1.30 lakhs apple growers in Himachal Pradesh are facing a headwind. The problem these apple growers are confronting with may have more to do with town and country planning, rather than esoteric economics principles or concepts.

As the apple season picked up momentum in Shimla district-a major apple belt- the vehicles carrying the produce to the mandis are facing a gridlock. The 55 Km road stretch from Narkanda to Bhatakkafur has become a focal point; last week the stretch encountered a terrible traffic jam and it took 5-6 hours to commute this stretch. This has kept the apple growers on a tenterhook as the traffic jam has precluded their apple produce to reach the fruit mandi in time.

Apple Season Traffic in Shimla 2

More importantly, the more frequent such inordinate delay, the lesser chances that their produce will fetch handsome returns. The predicament has left these growers disgruntled with the administration for want of better traffic management.

This prompted the administration to swing into action with a slew of measures: the vehicles having a token will only be allowed to enter Bhattakufer mandi, such tokens will be made available at Charabra and Koti; a complete  ban on the parking of vehicles along the roadside from Hassan Valley to Bhattakufar and  on Shoghi Taradevi road; the vehicles after unloading the apples at Bhattakufar mandi will have to commute back via Mashobra-Bekhalti road.

Albeit, it’s unlikely these steps will solve the fundamental issues responsible for their woes: the absence of a market yard to cater to the present demand, and relentless increase in the unplanned shops of fruit agents on the roadside.

The decades old fruit mandi at Bhattakufar has failed to withstand the present-day demand as its infrastructure has outlived its utility. 

For long, apple growers associations have been demanding a new commodious market yard equipped with ultra-modern facilities; but it never came. Had the market yard come, it would have not only decongested the traffic on the Hindustan Tibet Road but, also would have catered to the present-day requirements. The apple industry has seen radical changes over the last decade: it’s now technology-driven that brings produce to the market in a glut, creating a bottleneck in the market. 

Seizing this opportunity, a legion of fruit merchant has mushroomed along the Hindustan Tibet Road over the past decade. Initially, much to the delight of apple growers as apple market became competitive fetching growers better return for their products than ever.  But now, these shops have become a bane of commuter and hurting everyone.  

Apple Season Traffic in Shimla

Most of these shops are housed either in the temporary structures or in under-construction buildings. Moreover, these shops are without ample parking space, therefore, loading and unloading are done on the roadside creating congestion on the road and ultimately leading to traffic jams. Also, the situation has transformed into an unnerving concern of road safety.

Apple Season Traffic in Shimla 4

Just travel beyond Theog towards Narkanda, you will find an illustration portraying what chaos such fruit shops have created. Simply, a deracination of Town and Country planning concepts. This haphazard proliferation of fruit shops along the roadside must be stopped, and such construction should be brought under the ambit of the law.

Now with the change of guard in the state, and new government going big and aggressive on attracting private investments. A clamour for a fruit market yard with ultra-modern amenities is apt and congruous with present-day requirements. Going forward, all we need to ensure is that clamour is loud enough and reach the ears that matter. 

Meanwhile, we must keep waiting as it’s unlikely the traffic jams on the Narkanda-Bhatakuffar stretch on Hindustan Tibet Road will go any sooner. And best of worst may be yet to come. Who knows!

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The Curse of NGT Judgment – Undoing of Urban Planning

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Impact of NGT Orders on Shimla City's Development

Shimla– An old ‘common law’ proverb from the British era says “A man’s house is his castle, et domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge]”. This principle, which needs to be strengthened in a free country, is sadly in shambles and perhaps held more truth in the colonial times than it holds now. The level of insecurity a man has with respect to the ownership or for making improvements in his living space/house or building is increasing day by day because of unreasoned judgments of Courts or illogical executive dictates.

In these series of articles (1,2 & 3), the impact of various laws and judgments which have essentially worked for depriving the common citizens in State of H.P, of their ‘Right to Property” will be critically examined.

This article is aimed at academically discussing and pointing out the perversitie and manifest errors in the ‘NGT Judgement’ which was passed on November 16, 2017. The judgment banned all construction activities in the green and core areas and also within 3 meters from national highways. It also restricted the number of stories to two-and-a-half in other areas where construction was permitted to up to 4 to 5 stories.

THE UNHEARD VICTIMS

The Order adversely affects many different categories of people. For instance, a person who has a sanctioned plan in accordance with TCP Law/By-Laws/Rules, who had saved his ‘life savings’ for the construction of his house, is now stuck in limbo, having done nothing wrong. If a man had the approval and sanctioned plan of  ‘four and a half story’ building, which was permitted under TCP law, he is now told that he cannot construct the house in accordance with that initial sanction.

Another man who has his sole plot/property in the core area is prevented from doing anything with it, though he may have buildings on either side of his plot. The significance of the initial sanction and the mandate of the Town and Country Planning Act is bypassed by the Hon’ble Tribunal which is not even competent to decide the matter under such Laws (TCP Act/ MC Act). To add insult to injury, such persons are not even heard or paid compensation before they are so monumentally impacted by the decision.

The Constitution makers bestowed right on every citizen of the country to acquire, hold and dispose of property and  also provided ample safeguards against deprivation of the property by confining such deprivation only on payment of compensation to the expropriated owner. As such, the judgment is against the spirit of Article 300-A of the Indian Constitution.

IMPACTING DEVELOPMENT BY ABSURD AND BLANKET DIRECTION

1. Around 52 ‘Shimla Smart City Projects’, which aim at improving the infrastructural base of the city, are directly impacted by this judgment and are stalled. Such a wide impact of this blanket direction neither can be conceived nor can be expected to be implemented if the city has to grow. Further, such powers were never envisaged under the NGT Act which creates the Hon’ble Tribunal.

2. Another blanket and absurd direction is where the judgment prohibits new construction of any kind, i.e. residential, institutional and commercial in any part of the core area as defined under the various notifications issued under the Interim Development Plan as well by the State Government.

According to the standing laws of the State, the reconstruction in the green areas is permissible on old lines and construction in the core area with the permission of the State Government is also permissible, as per the existing laws (Notification/Statutes). If someone’s house is falling or has become structurally unsafe he should obviously be allowed to reconstruct on old lines, but this is also prevented as a consequence of these directions.    The tribunal has not quashed the relevant notifications which deal with this issue and has said something completely contrary to the existing laws. Now the situation is that we have two sets of laws, which are completely opposite to each other. The Tribunal doesn’t have the power to quash these laws nor interpret them.

3. The most Absurd direction is where the judgment says that beyond core, green and the areas falling within the authorities of the Shimla Planning Area, the constructions may be permitted strictly but not beyond two stories plus attic floor.

According to the law of the land, the construction in the core areas is being regulated by the provisions of the Interim Development Plan for Shimla as amended vide notification dated  28th June’ 2016, which clearly provides that the construction in the core area of Shimla is not story-based but is based upon the  maximum floor area ratio and maximum height of the building which is 1.50 to 1.75 & 21 meters respectively. Similarly, in the non-core areas of Shimla, the maximum floor area ratio is 1.75 & the maximum height of the building is 21 meters. Since the provisions of the Interim Development Plan for Shimla are still in operation, the same are now in conflict with the directions imparted by the Hon’ble Tribunal.

Traumatizing & Patent Illegality of the Judgement

There are numerous errors in the said judgment of the Hon’ble Tribunal, some are legal errors and others are factual errors. The judgment not only enters into a field which is outside its purview, but it also gives a shortsighted vision of its own in the matters of planning and development without comprehending the complexity of the factual problems which exists on the ground.

Though there are many flaws in the judgment, in this first article of the series, some of them have been enumerated as follows:

Firstly, the judgment dated 16.11.2017 has been passed in violation of the principles of natural justice and without giving an opportunity of being heard to those persons who stand adversely affected. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. Right of being heard is a right given to those parties who will be adversely affected by the decision. This right is a backbone for a ‘Fair Trial’. Such an important aspect of the judicial proceeding is missing in this case. Numerous persons whose property rights have been taken away have not been heard until now. The judgment should fall on this ground alone.

Secondly, the Tribunal is not even competent, or in other words, has the necessary jurisdiction to hear or decide matters relating to TCP Act or Municipal Corporation Act. The Tribunal is specifically established for matters which relate to ‘Environment’ and laws/Acts which deal with the protection of the same for e.g Environment Protection Act, Water Act, Air Act, etc. The tribunal certainly cannot br expected to interpret TCP Act and MC Act or bypass the mandate of Article 300 A and deprive persons of their houses or stop future government projects which are necessary for effectively implementing State policies.

Thirdly A peculiar problem which has arisen right now is that ‘Town and Country Planning Act’ provisions are not struck down and NGT judgment, which is saying something completely opposite, also stands. It is a rule of thumb that when the Courts have to disagree with a statuary provision for being unconstitutional etc., they will either quash it or read it down. NGT has done none of it, nor it could have done anything in this respect since these two acts are outside its jurisdiction. These acts fall within the jurisdiction of the Hon’ble High Court or the Hon’ble Apex Court.

When the law of the land has not been quashed or struck down, it obviously means that it is still the law of the land and has to be implemented. The judgment seems to be more on the lines of guidelines rather being a dictate or laying down an authoritative pronouncement.

Another fundamental flaw in the judgment is that the Tribunal has traveled way beyond the petition/application and what was prayed by the Applicant who approached it. The Courts, as a rule of practice, are limited to the pleadings which are filed before it, in this case, the Hon’ble Tribunal has gone far beyond the petition which it was deciding. The phrase ‘knight roaming in a shining armor’ is apt for this judgment. Here, the Court has set out to make right all the problems and evils of the State and has done future planning both for urban and rural areas and for the lakhs of inhabitants of such areas.

An important principle which has been forgotten in these blanket directions is ‘Actus curiae neminem gravabit’. The act of the Court shall prejudice no man. (Cumber v. Wane, i Sm. L. C. i ith ed. p. 338.)’.  The number of people who have been condemned unheard is astoundingly large. The livelihood of thousands is at stake, the development of the urban and rural areas of the State is at stake. These people are not criminals, these development plans are not out of the ordinary rather are a necessity for a growing city. The development plans have rightly been drawn by the competent authority under a well-established law. If the law is ‘common sense’ then this sense demands that these directions need a relook. If a law makes lakhs of people in the State as law breakers than there is something wrong with the law itself.

Right to Shelter, Challenges of Providing Housing to the Growing Population

It must be remembered that if everyone is compelled to make two and a half stories or not construct on vacant plots, it would lead to scarcity of housing or it would lead to cutting down of more trees as more land/surface area would be required to construct such houses. To sustain the growing population 4 to 5 storied buildings which if found structurally safe and not impacting the environment were perfectly reasonable and rightly allowed by the TCP/MC laws.

Right to shelter is a fundamental right and right of people to move from rural to urban areas is also a basic right. Both these rights stand defeated if these directions are not quashed. Housing will just become more and more expensive and out of the reach of poor and middle-class families. Old structures won’t be reconstructed, no new constructions will be raised, and no new Government projects can come up. The view of main Shimla town apart from Mall Road, which looks like a ghetto, will always remain like a ghetto.

In case of an earthquake, the chances of survival of the ‘High Court building’ (7 stories) and the ‘Cecil Hotel’ building (9 stories) are way more than the two-storied buildings of  Shimla’s lower bazaar /middle bazaar.  The point is that Morden technology and latest techniques of construction allow us to provide structurally safer buildings than what we had in the past. Further, they can also sustain more population in less surface area of land and fulfill a huge public purpose by doing so. The height of buildings as provided in municipal and TCP laws in accordance with floor to height ratio were reasonably arrived at by the competent authority. The Courts certainly are not equipped nor are expected to venture into this area which is outside their powers and tell us ‘how many stories can be built’, it is certainly the domain of the executive as they have experts with them and also have a better grasp of the ground reality (At least in theory).

The cost of such broad-ranging directions and ideas is very high – particularly on Shimla Town and its housing, making the cost of living and doing business costly and hurting the local enterprises, and thereby, shifting the planned outcomes into a different direction with respect to economic opportunities. The focus of the planning approach has to shift from ‘development restricting’ approach toward ‘development enabling’ approach and it requires finalization of the Developmental plan for the city. It is extremely surprising that Shimla City does not have a final development plan in place to date (this will be discussed elaborately in future articles).

There are numerous other directions and issues relating to the final development plan and some arbitrary TCP Rules such an “non inhabitable attics, no single window clearances and the power of the babus to extort money in passing of plans etc  which will be critically examined in the next article.

Disclaimer: The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher.

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Dark Sides of Aadhar Amendment Act & Plea to Connect Aadhar With Voter ID

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Dark side of aadhar amendment act and linking it to voter id

Shimla-The September 2018 Aadhar case verdict of the five-judge constitution bench had said that there was nothing in the Aadhaar Act that violated the right to privacy of an individual. The bench headed by the then Chief Justice of India Dipak Misra had also upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha. Against the said judgment a Review was filed and is still pending in the Apex Court.

This month again, a Retired Army officer SG Vombatkere and human rights activist Bezwada Wilson, have filed the petition challenging the constitutional validity of the Aadhaar and Other Laws (Amendment) Ordinance, 2019 and the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019. The Supreme Court heard the petitioners and issued a notice to the Central Government and Unique Identification Authority of India (UIDAI).

The petitioners have submitted that the Aadhaar Ordinance created a backdoor entry to private parties to access the Aadhaar eco-system, thus enabling state and private surveillance of citizens. The regulations also permitted the commercial exploitation of personal and sensitive information, collected and stored for state purposes only, they have claimed.

“The Adhaar Ordinance and Regulations are manifestly unconstitutional as they seek to re-legislate the provisions of the Aadhaar Act, 2016 which enabled commercial exploitation of personal information collected for the purposes of the state (by permitting private parties to access the Aadhaar database), which were specifically declared unconstitutional in Supreme Court’s decision dated September 26, 2018, in Justice Puttaswamy v. Union of India,

the petitioners have said.

The petition further submits that through the regulations, the UIDAI has expressly sought to commercialize and gain financially through the large-scale collection of citizens’ private data and the use of Aadhaar database by private entities.  People’s data, which was collected for the Aadhaar database, is their private property and permitting this to be commercialized is an impermissible violation of their dignity under Article 19 and 21 of the Constitution

The Aadhaar Ordinance, according to the petitioners, was promulgated in an improper exercise of the ordinance-making power of the President under Article 123. The President of India Ram Nath Kovind promulgated the Aadhaar Ordinance on March 3, 2019, after the Aadhaar bill lapsed due to the dissolution of 16thLok Sabha.

LINKING OF AADHAR WITH VOTER ID 

Two hundred public-spirited individuals have written a letter to the Election Commission of India (ECI) to warn against the dangers contained in a petition before the Delhi High Court seeking an e-voting system using fingerprint and face biometrics and for that purpose, linking Aadhaar numbers with voter IDs. The high court has issued directions in Ashwini Kumar Upadhyay vs Union of India, asking the Election Commission of India (ECI) to consider the plea within eight weeks.

Urging the ECI to seek a dismissal of the Upadhyay petition, the individuals said that Aadhaar linkage would harm the right to vote that Indian citizens have under our democracy, flowing from the Constitution and the Representation of People’s Act, 1951.

While the Representation of People’s Act, 1951 currently limited universal adult suffrage to Indian citizens (including non-resident Indians (NRIs) still holding an Indian passport), the letter pointed out that under Section 9 of the Aadhaar Act, 2016, the Aadhaar number or authentication did not constitute proof of citizenship. Therefore, “linking of Aadhaar number with voter ID would effectively be an exercise involving significant public expense and yielding no benefit whatsoever in determining the genuineness of voters”.

Warning that the linking would not just “weaken and contaminate” the Indian electoral system but also harm the functioning of our democracy, the individuals reminded the ECI of the many instances where Aadhaar IDs had been found with non-nationals or there had been blatantly incorrect and fake enrolments.

“We also ask the Hon’ble Commission to recollect the disastrous outcome of the previous exercise of Aadhaar-Voter ID linking conducted as part of the National Electoral Roll Purification and Authentication Program (NERPAP) in 2015, due to which at least 30 lakh voters disenfranchised. As that exercise demonstrates, carrying out timely door-to-door verification of voters is as yet the most effective method of updating electoral rolls and ensuring accuracy of voter data,”

they said.

“We would like to point out that not only does possess an Aadhaar number fail to qualify the number holder’s eligibility to vote, biometric-linked authentication would, on the contrary, disenfranchise many rightful voters, in particular, the elderly, manual labourers, and those living in areas suffering a lack of electric power and/or network coverage,”

the letter said.

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