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decemBER 22, 2018

Rafale Judgment on Trial

Supreme Court can exercise judicial activism only to the extent that the government of the day permits it.

he Supreme Court’s judgment refusing to set up an investi- any official form, they would have been given short shrift in
gation team to look into the Rafale deal has an air of a trial court yet the Court proceeds to quote from them with
haste and incompleteness about it. Multiple factual confidence as the basis to refuse investigation into the deal.
errors have been pointed out by commentators already, the The end result is that far from settling any controversy or aiding
most notable one being the Court’s belief that the Comptroller any truth from coming out into the public domain, the Court has
and Auditor General (CAG) of India had already submitted a only kept most questions about the deal unsettled, and raised
report on the deal to the Public Accounts Committee (PAC) of more on its own institutional capacity to adjudicate such disputes.
the Parliament. While this glaring and obvious error has rightly To the untrained observer, the Supreme Court’s reluctance to
absorbed attention in the public sphere, the Court’s judgment take on the Narendra Modi-led National Democratic Alliance
is also based on other questionable assumptions of fact and government on controversial matters ranging from demonetisa-
avoidance of legal analysis. tion to the suspicious death of Judge Brijgopal Harkishan Loya
What aggravates these errors is the shoddy manner in which would seem incongruous given the vigour with which the
the Court proceeded to hear this case. Despite having noted Court undertook investigations into the scams unearthed in the
that the initial petitioners had filed flimsy and skeletal peti- final years of the United Progressive Alliance government. An
tions which deserved to be dismissed, the Court nonetheless uncharitable conclusion might be drawn: that the Court can
kept the matter alive until a more informed and detailed inter- exercise judicial activism only to the extent that the government
vention was made. Even so, throughout the hearings, the Court of the day permits it.
never seemed entirely convinced of the need to probe deeper But, such a conclusion would also mask some deeper truths.
into the issue. The office of the CAG, whose draft reports formed the basis for
What happened during the hearings also reflects poorly on some of the Court’s interventions is rarely seen or heard of
the Court. First, the Court said that it did not want to look into these days. The Central Bureau of Investigation (CBI), which
the pricing aspect of the matter, then changed its mind and the Court depended on to carry out investigations, is in complete
asked the government to provide details of pricing in a “sealed and utter disarray thanks to undue government interference
cover.” Second, when submitting pricing details only in such and internal bickering, with the Central Vigilance Commission,
“sealed cover” it now appears as if the bulk of the union govern- supposed to supervise the CBI, having stood idly by until it was
ment’s arguments were permitted to be made in the documents too late. Without other agencies working as intended under
filed in this sealed cover, with no opportunity to the petitioners law, any Supreme Court intervention in the Rafale deal would
to rebut facts. This clearly seems to be the source of the error have been, at best, an ill-informed stab in the dark.
relating to the CAG report and the PAC. Whether the union govern- The intriguing part of the recent judgment is that it rules out
ment wilfully misled the Court or that the Court misinterpreted any foul intention in the deal. The Court seemed to be in a great
the paragraph is still unclear. Neither answer paints the Court in hurry to give the judgment relying only on the information given
a flattering light as even if it is the former, it is the Court’s duty to it by the government. Although it was the obligation of the
to allow the other party to rebut such assertions and not rely on government to give all the necessary information required for
them simply because it has been submitted in a “sealed cover.” a complete judgment, that seems to have not happened. In such
Third, even as it keeps insisting that questions of defence a situation, the Court should have asked for such necessary
acquisition are matters beyond its technical competence, the information. It gives us the sense that a more complete judg-
Court cannot help but make passing remarks on the necessity of ment is awaited in this case.
the Dassault Rafale fighters for the Indian Air Force. This seems to Even with the cooperation of these agencies, there is no
be based on an unstructured and somewhat haphazard “interac- guarantee that the Court’s intervention necessarily serves the
tion” with air force officers during the hearing. The statements purposes of justice or larger constitutional goals. For all the
being made neither on oath nor being recorded in writing in fire and brimstone of the Supreme Court, the 2G-spectrum
Economic & Political Weekly EPW decEMBER 22, 2018 vol lIii no 50 7

allocation case ended in a whimper as all accused were acquitted matters such as the Rafale deal. Is it a balanced arbiter of legal
by the trial court. There has been little by way of mea culpa by disputes? Or is it a public inquisitor tasked with unearthing the
any agency involved in that case. truth? Can it choose to be one or the other at its convenience?
At some point, the Supreme Court will have to carry out pro- With the scrutiny it finds itself under, such introspection cannot
cedurally more adequate and balanced appraisal of its role in be put off anymore.

8 decEMBER 22, 2018 vol lIii no 50 EPW Economic & Political Weekly