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India has a right to know how the CJI-led bench went wrong with Rafale judgment

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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?

Also read: SC on Rafale PILs: Setback for Rahul’s campaign or lesson not to politicise defence deals?

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?

A course-correction?

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.

Also read: Narendra Modi government may have won this Rafale round, but Congress can still fight

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”.

Also read: Supreme Court merely sniffing secret envelopes to see if there’s a scam in Rafale deal

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  1. SC is misled since it looks into evidences and witnesses any fabricated fact will lead to such judgement. SC cannot be blamed for that, it is lowest among low morale of the goverance reflect the nation view, hence the good is proved as bad, ghor kalyug.

  2. If CJI gets confused about process of CAG Report given to PAC and then tabled in partliament how can we trust he has understood proper process of defence acquistion to adjudicate that process was followed with minor deviations. How are we to trust that these deviations are minor.

  3. When an institution that is supposed to protect justice not only denies justice but also by this action sets dangerous precedent emboldening people at high places to wreck havoc at their whims and fancies, is there any remedy? I pray that the need of the hour is for honest citizens and scholars caring for long term future of India to seriously think about new solutions to remediate this and similar situations that may arise in future

  4. I have gone through all the articles and comments! And come to conclusion that there is some messy about the deal? I must appreciate “ThePrint” for its effort to bring the issue before public? It is another matter that ThePrint got an opportunity to fish in the troubled waters?

  5. SC judges are not god. Mistake do happen. Though Modi government also mislead SC. It will be appropriate to re address the entire issue. One should not forget that most eminent persons like Shouri, Yashwant, Prashant are asking for the same.

  6. Frankly, I haven’t been able to get over the whole thing yet. (I’m generally a confused man, that’s another matter). I mean, there was a gap of I think 15 days between the closure of hearing and the judgement — it wasn’t as if the judgment was announced the very next day; the judgment itself wasn’t of a few hundred or thousand pages but less than 30; then how is it possible that the seasoned judges who have an eagle eye could miss out on this?

    Sealed envelope is supposed to contain only the CONFIDENTIAL information; why were some explanatory lines like what happens to CAG and PAC etc introduced like some excerpts from a text book?

    BJP government, one of the interested parties, wants the SC to “correct” its judgment!! Why does it not first apologize for having included redundant lines in a sealed cover?

    The judges are truly on a holiday. There is not even a murmur of a word from then on this gigantic faux pas. Indeed, the entire so called green chit was dependent on this very important assumption: that the CAG has reviewed it, the PAC has been in the loop, and final agreeableness of the deal has been put out in the public domain for all to see and satisfy themselves. The Court naturally said, if all this has happened, then fine! It’s OK with us too! BUT ALL THAT HAS NOT HAPPENED YET and the Court was MISGUIDED by the government.

    I see a great possibility that the bench may decide to have a relook at the case when they are back. If they don’t, then according to my own limited intelligence, I will conclude that this is some sort of an “arrangement” between the SC and the government, and the Ram-bhakts should be prepared for a bombshell in the Ayodhya verdict

  7. By the way, this is the same Chief Justice who – the liberals claimed, was up against the previous one saying that democracy was in danger. So, are liberals saying that democracy is in danger again ?
    I think that liberals are the neo-fanatics: their way or the highway. I am not pro-Modi, I do not agree with most of his brand of politics. I Am only saying that liberals should fight political wars in the open in countryside and never in the courtroom. Politics is a field job, not a drawing room pleasure. By rushing to Supreme Court every time they are committing what philosopher Gilbert Ryle has said ‘category mistake’.

  8. While constructive criticism of a judicial verdict is always welcome, one should be very careful not go overboard and denounce the judgement in its totality. When obvious inconsistencies have crept in, they should be corrected without any loss of time. However, to make a sweeping assumption that these errors or inconsistencies have dented the very basis of the judgement is fraught with risk. It is only for the honourable SC to consider this aspect while making suitable corrections. Government has already approached the Apex Court for making some corrections If the petitioners or distractors are not happy with the judgement let them file review petition. There is no point in writing long articles and/ or in creating ruckus in the parliament. One should never prejudge or make speculative assumptions and pretend knowing the mind of the judges. Let the honourable CJI examine this and let us wait for the verdict.

  9. Leaving aside the merits of this particular case, the apex court has been too deferential to the political executive on the entire issue of arms procurement. All over the world, this is a very messy affair. When a petition such as this one is brought before the Court, it certainly has the sound judgment to separate the strategic aspects from an allegation of wrongdoing. Since I am not a lawyer, the finer points of Article 32 escape me. However, this is a route many PILs have taken. Once the Court decides to consider a petition, technicalities should not stand in the way. The apex court was very generous with its time, allowed almost a full day to hear arguments, called IAF officers as well. It could have dealt with all the upissues much more comprehensively, brought a sense of closure which this judgment has been unable to. Given how things now stand, there is a very good case to recall the judgment.

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