Delhi High Court - Orders
Ivs Software And Anr vs Rail Telcorporation Of India And Ors on 27 September, 2019
Author: G.S.Sistani
Bench: G.S.Sistani, Anup Jairam Bhambhani
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5913/2019 & CM APPL. No. 37463/2019
IVS SOFTWARE AND ANR. ..... Petitioners
Through: Ms. Tania Sharma & Ms. Rukmini
Mukherjee, Advs.
versus
RAIL TELCORPORATION OF INDIA AND ORS.
..... Respondents
Through: Mr. Maninder Acharya, ASG with
Mr. J.K. Singh, Mr. Saurabh
Sharma & Mr. Viplav Acharya,
Advs. for R1.
Mr. V.S.R. Krishna & Mr. Subodh
Kumar Kaushik, Advs. for R-2.
Mr. S. Hariharan & Ms. Jaikriti S.
Jadeja, Advs. for impleadment
parties.
Mr. Darpan Wadhwa, Sr. Adv. with
Ms. Shankari Mishra & Mr.
Toyesh, Advs. for R3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 27.09.2019 In this writ petition, notice was issued on 29.05.2019.
2. While issuing notice, we had observed the submissions made by learned senior counsel for the petitioners i.e. the allegation that the tender document has been tailor-made to oust all Indian vendors and favour two Chinese vendors.
3. We had also taken note of the submissions made by learned counsel for the respondents and had taken on record the statement of counsel for the respondents that the last date for opening of the tender would be postponed to 21.06.2019.
4. This interim arrangement was modified on 16.07.2019 to the extent that the tender would not be awarded till the next date of hearing.
5. In the application seeking interim relief, learned counsel for the petitioners and also learned counsel appearing for respondent No. 3/Telecom Equipment Manufacturers Association (TEMA) have highlighted the fact that two Chinese manufacturers which are likely to be the favoured vendors have been banned by the United States of America ; in which context the attention of the court is drawn to the John S. McCain National Defence Authorization Act for Fiscal Year 2019 (John S. McCain Law), which has been passed by the United Stated of America.
6. Counsel for respondent No. 3 submits that the tender pertains to a very sensitive subject matter and in the interests of national security, to ensure protection against hacking into recordings, data and information relating to the Railways and other types of threats and vulnerabilities, it is important that these two companies should in fact not be allowed to participate in the tender.
7. Counsel for the petitioners contends that having regard to the nature of surveillance equipment which is required to be installed at Railway Stations, these Chinese companies would have access to complete video recordings of railway operations and in case such video recordings are shared, it is likely to compromise the security of the nation.
8. Counsel has further highlighted the fact that in a previous tender, an express condition was incorporated that any company which had been banned by any sovereign nation would not be allowed to participate. However, conspicuously, such clause does not find mention in the present tender ; and moreover, the counter-affidavit does not explain why such clause has been deleted. Thus, not only the security of the nation is likely to be compromised but Indian manufacturers/vendors would also stand ousted.
9. Learned Additional Solicitor General who has appeared in the matter submits that this concern was raised by the petitioners and TEMA ; and accordingly, the matter was taken by TEMA to Niti Aayog by a communication dated 15.04.2019, highlighting its concerns.
10. Learned ASG has shared communication dated 17.07.2019 issued by Niti Aayog and has relied upon Office Memorandum dated 30.07.2019, both of which are post filing of the writ petition, to highlight that the respondents have become conscious and sensitive to the stand taken by the petitioners and the concerns have been addressed in the Minutes of Meeting dated 29.07.2019 which are reproduced below :
" Decision taken in the meeting :
1. To ensure security of camera and network from vulnerabilities & breaches and discourage false undertaking from OEMs, security auditing and testing shall be carried out from a reputed CERT-IN empanelled agency like STOC at the time of POC (Proof of Concept) as well as at the time of completion of project.
2. In case, any security breach is found in the system at any stage including at PoC level, the contract shall be terminated.
3. Source code of software of camera should be taken from the supplier/OEM.
4. Before bulk supply and installation of material, a PoC must be done and the same shall be evaluated by a competent team.
5. The bulk of the FHD cameras procured in this work is of sensor size 1/2.8", which forms 96% of the total cameras, these have a very wide vendor base both in India & Abroad.
6. The cameras of sensor size of 1/1.8" is around the 4% of the total number of camera and as these are desirable to ensure security in station premises and for proper functioning of FRS, Railways can procure 1/1.8" sensor size, 4K 8MP Cameras.
7. If condition 1 & 3 above are satisfied by supplier/OEM, the country of origin of the cameras becomes immaterial."
11. Learned ASG further submits that there is an urgency in awarding the tender as the CCTV cameras featuring face recognition system are required to be installed all across the country and delay of each day is causing prejudice. In the absence of these CCTV cameras featuring face recognition system, the security of the nation is at stake. Thus, there is an urgency in the matter.
12. Mr. Hariharan, learned counsel for intervenor submits that the respondents are equally concerned about the security of the nation. He submits that the ban imposed on two Chinese companies is unwarranted and unnecessary, especially since one of the companies has a 100% Indian owned subsidary - having a manufacturing unit in Maharashtra, employing more than 1700 workmen.
13. Having heard counsel for the parties and considered their rival submissions, we are of the considered view that placing reliance on the John S. McCain Law is misplaced since the same is general in nature, addreses the concerns and sensitivities of that country and it may not be necessary to base commercial tenders in India on that law. Moreover, it is not for this court to decide as to whether the security of the nation is at stake for the reason firstly, that tenders are yet to be awarded ; and secondly, such decisions are to be taken by the experts in the field and besides, a responsible policy making agency of the country, namely the Niti Aayog, has been consulted in the matter.
14. Although as recorded above, Ms. Acharya assures the court that Niti Aayog was informed about the apprehensions and of the submissions made by the petitioners and TEMA, we deem it appropriate to direct that a copy of this order be brought to the notice of the Niti Aayog forthwith ; and it is left to the Niti Aayog to decide as to whether the security of the nation would be compromised in case the tender is awarded to these two companies.
15. In view of the above, the interim order granted by this court stands vacated. For the record, learned ASG states that as of date, she is unaware as to whether the Chinese companies have even participated ; or whether they would qualify the technical and financial bid ; or whether they would be awarded the tender.
16. List the matter for hearing on 11th March, 2020.
17. Order be given dasti.
G.S.SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
SEPTEMBER 27, 2019/uj