Whatever the court does now in the Rafale case, it will be viewed with scepticism.
The Supreme Court may have given its seal of approval to the Rafale deal. But, after Friday’s landmark judgment, more people will now certainly subscribe to the theory that something was fishy in the deal. And, the credit for this must go to the ‘shoddily written’ judgment of the Supreme Court.
And, the court has only itself to blame for receiving brickbats for the judgment. It should have either stayed away from the sensitive matter, or dealt with all the issues raised by the petitioners. Cherry-picking issues to adjudicate doesn’t show our highest court in a very good light – either go into the entire issue or leave it to the politicians to fight it out.
The Rafale judgment is a prime example of the perils of trying to dispense justice through sealed envelopes.
If one of the most critical parts of the judgment, which says there was nothing wrong in the contract cost-wise, is based on the material provided to the court in a sealed cover, either the court shouldn’t have based its order on that material or allowed petitioners to access it and given them a chance to rebut the government’s claims.
But the bench, headed by Chief Justice of India Ranjan Gogoi, did the exact opposite. And in doing so, it was unfair to the petitioners.
The CAG conundrum
More worryingly, the judgment is also a poor reflection of the judges’ understanding of how other institutions under the Constitution function.
If one assumes that the Centre is not misrepresenting facts when it claims that the mistake in Paragraph 25 of the Rafale judgment, which is at the heart of the controversy due to the ‘grammatical’ errors, was introduced by the judiciary, it only shows that the judges didn’t bother to understand how defence deals are looked into by the country’s official auditor – the Comptroller and Auditor General (CAG).
If the judges got the impression that the CAG report on Rafale had indeed been submitted in Parliament and had been sent to the Public Accounts Committee, should the court be hearing the case?
Our judges do read newspapers and many of them are in the know of developments around them, either directly or through their interns. So, why didn’t the judges check if such a CAG report actually existed?
The sealed cover
Since the pricing and other details of the mega deal were submitted to the court in “sealed covers”, with one of the notes being in “bullet points”, how do we know what was actually there inside the sealed covers? The note in bullet points reportedly carried the critical paragraph about the Narendra Modi government having already shared the pricing details with the CAG and the CAG report being examined by the Public Accounts Committee of Parliament, and that “only a redacted version of the report is placed before the Parliament and in public domain”.
Also, one wonders from where exactly the bench got the impression that the Chief of the Air Staff had “communicated his reservation regarding the disclosure of the pricing details, including regarding the weaponry which could adversely affect national security”.
Was that too part of the sealed cover? If yes, didn’t the petitioners deserve to see that too?
Having allowed grammatical mistakes to creep into their judgment, the judges must certainly be wondering if they could have dealt with the issue with more due diligence.
Needless to say, whatever the court does now, in this case, it will be viewed with scepticism. The credibility of the court’s judgment hangs on a grammatical point.
Doesn’t the country have the right to know how not one but three judges, including the Chief Justice of India, Ranjan Gogoi, got such an important point wrong?
Now that the government has filed an application suggesting the exact changes that the court must make in the judgment so as to ensure that the “controversy being raised in the public domain” is put to an end, will the judges play along or recall the entire judgment?
More importantly, will the court finally realise the folly of trying to adjudicate sensitive issues via sealed envelopes? Also, the court had itself said that it was only “proceeding in the matter in order to satisfy itself of the correctness of the decision-making process” and that it would not go into the “issue of pricing or matters relating to technical suitability of the equipment (in the tendered fighter aircraft)”. Will the court now admit that it is wading into the other issues as well?
The Supreme Court is the highest court of the land, one tasked with protecting our rights. It needs to check the growing tendency to needlessly jump or be dragged into what are essentially political issues. Otherwise, errors, like the ones in the Rafale judgment, will continue to creep in, dragging down the court’s prestige and power.
PS: Guess who was the lead petitioner in the Rafale case? It is none other than one Manohar Lal Sharma, the same lawyer who was fined Rs 50,000 by a bench headed by CJI on 7 December for filing a frivolous PIL against finance minister Arun Jaitley. The bench also directed that “until cost amount is paid no PIL filed by Shri Manohar Lal Sharma, Advocate, will be entertained and put up before the Court”.
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