Thursday, 1 December, 2022
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Supreme Court merely sniffing secret envelopes to see if there’s a scam in Rafale deal

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Opposition has already approached the CVC and the CAG on Rafale deal.

If you sniggered at the Pakistan Supreme Court’s fund-raising drive for construction of the Diamer-Bhasha and Mohmand dams and their chief justice Mian Saqib Nisar’s intervention in the issue, wait till you hear what our Supreme Court is doing about the Rafale deal.

There are no constitutional or even legal questions for the court to settle, but it is simply sniffing secret envelopes to see if it can smell a scam. In doing so, the court is undermining a whole bunch of institutions that are in place to tackle this.

First, Manohar Lal Sharma, an advocate, files a public interest litigation naming Prime Minister Narendra Modi as the first respondent and seeks the court’s intervention in the Rs 59,000-crore Rafale defence deal.

On 5 September, a three-judge bench headed by then-Chief Justice Dipak Misra agrees to hear the case after Sharma seeks an “urgent hearing”.

Also read: Rafale deal is Bofors many times over, what it lacks is a V.P. Singh

On 18 September, the case is listed before a bench led by Justice Ranjan Gogoi, usually full of disdain for PILs and especially those seeking urgent hearings, which accepts the plea. When Gogoi becomes the CJI, the case moves with him from Court 2 to Court 1. Sharma, an advocate who specialises in filing frivolous PILs, is granted permission to argue. But, more on him later.

The language of the court’s order seems to be an announcement that a new emperor is in town who likes to weigh in on everything at any time.

This is not about the Supreme Court directing the Centre to file documents on record. Without formally issuing a notice, it is instead telling the government that “it would like to be apprised of details” that the public is unaware of in sealed envelopes to simply “satisfy itself”.

The following extracts of the apex court’s orders show why its intervention is so troubling.

“We make it clear that we are not issuing any notice at this stage on either of the writ petitions filed under Article 32 of the Constitution. However, we would like to be apprised by the Government of India of the details of the steps in the decision-making process leading to the award of the order for the defence equipment in question i.e. Rafale Jet-Fighters (36 in number. We also make it clear that while requiring the Government of India to act in the above terms, we have not taken into account any of the averments made in the writ petitions which appear to be inadequate and deficient. Our above order is only for the purpose of satisfying ourselves in the matter,” the court said on the first hearing itself on 10 October.

Also read: Modi government’s refusal to appoint Lokpal weakens its Rafale defence

On 31 October, during the second hearing, the court said it “would also like to be apprised of the details with regard to the pricing/cost, particularly, advantage thereof, if any, which again will be submitted to the court in a sealed cover”.

Distrust of institutions

In the garb of judicial review, the Supreme Court has usurped the role of all other institutions serving as checks and balances in a democracy.

If there are graft allegations against a public servant, the statutory body Chief Vigilance Commission will look into it.

The Comptroller and Auditor General of India, a constitutional body like the Supreme Court, will audit every penny spent by the government. The audit reports are then scrutinised by the Public Accounts Committee (PAC), which is headed by the leader of the opposition. The PAC’s role is to examine the audit report for any loss of public money through corruption or inefficiency.

The opposition has already approached both the CVC and the CAG, but the court cannot do the job of these two institutions before they can have a chance at it. This dangerous distrust of every other institution apart from itself prompted the court to cancel all 2G spectrum licences in 2012.

Whose interest is it anyway?  

Sharma, as an advocate, gained notoriety after he represented the accused in the 2012 Delhi gang-rape case. His fame extended a little more than five minutes as everyone loved to hate him for his derogatory and sexist remarks against women.

Since then, he has filed a PIL on every controversial headline. The court dismisses a majority of his petitions and has even fined him multiple times for filing “frivolous petitions”. Yet the Supreme Court continues to engage him and accept his petitions despite frequently calling out other PIL petitioners.

The court should have never entertained Sharma’s plea but former union ministers Arun Shourie and Yashwant Sinha also filing similar petitions on the Rafale deal have added heft to the original PIL.

Also read: Firecracker order shows in post-PIL India, Supreme Court has no time for fact-checks

What is the court doing?

Between three judges and over two dozen lawyers, no one seems to know what the outcome of this PIL will be. There are two broad, oversimplified outcomes – either the Modi government gets a clean chit or the court indeed finds some mischief.

If the court finds prima facie evidence of wrongdoing, will it form an SIT? Would the Central Bureau of Investigation whose chief Alok Verma is currently fighting a battle for his survival after he allegedly began looking into the Rafale deal head the SIT?

Or if the court gives the Modi government a clean chit, which seems highly likely, would that not close all doors if allegations come into light in future since the deal will be operational between 2019-2022?

No matter which situation plays out, the Supreme Court would have tragically trapped the Indian public between the devil and the deep blue sea.

The case will be heard again on 14 November.

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  1. There is surely something seriously wrong in the current Rafale deal.The way the CVC has handled the CBI matter ,it is better the Supreme Court handles the Rafale deal.

  2. Sinha & shouri petion have nothing except formal request for lodging FIR and investigate by CBI. It raise no Evidence of corruption no question about validity of international indo France Rafale agreement what has been challenged only BY Manohar lal Sharma IN HIS PIL. A SERIOUS constitution issue.
    Author wrote wrong false fact on the behest of prashant Bhushan against M. L. Sharma just to to highlight his pil as a heavy pil. Shamful. Itis seems a pid article while.
    Shouri a corrupt minister sold Air India two hotel to RSS members free of cost. Prashant exploited crores of rupee from Navin jinal after entering in pending coal block pil of sameManohar. Lal Sharma. He mDe AAP from jindal funding. See Aswini upadhyaya Executuve member of AAP.
    Prashant Bhushan never file any Pil but entered in others pil after admitted by supreme court. Mr. Author it is shameful what you did/wrote in dirty manner. You are aspected honest to show honesty not for degradation for any one.

  3. No wonder Modiji did not appoint LP.He has planned the Rafale deal very very meticulously. It might sound weird but sometime I wonder if former RM Manohar Parrikar’s health problems are real or some ruse to avoid/hide Rafale deal.

  4. It appears that supreme court is also confused and effort is being made to find out what is the truth. The congress party president Mr.Rahul Gandhi is shouting day and night that Rs.130000/- crore scam had happened out of a contract of Rs.59000/- crores where 36 war planes are to be supplied. Scores of highly intelligent people are supporting Mr. Rahul Gandhi and his arithmetic. But the common people are wondering what is this. Some people feel like to rejoin for studies once again to learn new arithmetic. Old arithmetic which was taught to them by their knowledgeable professors is now not of use in front of the arithmetic of Mr. Rahul Gandhi.

  5. Prof PK Sharma, Freelance Journalist,Barnala (Punjab)

    Mr/Ms. Apurva Vishwanath’s story suffers from subjectivity and futility !

    Two former Union Ministers Mr.Arun Shourie, Mr.Yashwant Sinha who had been a part and parcel of Late Mr.Atal Bihari Vajpayee led BJP government at the centre and Mr.Prashant Bhushan, an experienced jurist of India have raised this serious and grim issue of bungling in the Rafale Fighter Air Craft Altered -Renegotiated Deal issue not orally but on record in black and white, why should not the Honorable Apex Court take cognizance of the matter pertaining to a very critical defence deal to strengthen the squadrons of the Indian Air Force ! These persons are well known figures of stature who will not raise fingers against the Prime Minister without any substance ! Had laymen come out with the accusations of this grave nature, it would have been worth overlooking and neglecting !

    The circumstantial evidence is obviously against the alleged accused ones ! The altered and renegotiated deal should have been very diligently and responsibly clinched adhering to certain procedural and propriety yardsticks !

    Only a couple of anomalies and gaps very clearly beckon that there was certainly something wrong at the bottom !

    Will the Honorable Prime Minister present any document in public domain that before April 10, 2015, the decision on official record to alter and renegotiate the deal already in progress taken by either the concerned competent committee or the authorities ? Can the PM instantly take decisions of his own without following due process of law and procedures is also a soul- searching question ?

    Why a defaulter company with no experience in the discipline was instantly groomed up for offering undue favours ?

    Why there are cover-ups and change in the stances off and on so far regarding this defence deal ?

    The Apex Court is not at all taking view of the matter in question suo moto, but prayers have been made before it by the petitioners after exhausting procedures and adopting due process of law !

    Should not the Supreme Court bother to adjudicate the matter brought before it for scrutiny ?

    The Apex Court must be lauded and hailed for its keenness to discharge its duties and responsibilities with a spirit of devotion and dedication where the executive and other institutions of the nation have very badly been found wanting quite often ? The Apex Court
    is to prove its motto “Satyamev Jayate ” true in the letter and spirit ! Should not it ?

    Come what may, the TRUTH will ultimately prevail and win !

    Prof PK Sharma, Freelance Journalist
    Pom Anm Nest, Barnala (Punjab)

    • No it was not. Writer needs to be lauded for showing guts — unlike the rest of the media — in calling a spade a spade. (Last week there was a news story that that the CJI was “inconvenienced” on his visit to the Kamakhya temple in Guwahati. And a police DCP was asked suspended for such dereliction of duty. Mind you no aam aadmi was inconvenienced….but the CJI.

  6. I quote from the article’s last few paras:

    “…If the court finds prima facie evidence of wrongdoing…” 

    With due respect for the writer, why the IF?! How can the court ever NOT FIND any prima facie evidence??? Kindly consider this one fact only:

    Mr Modi met the French side FOR THE FINAL MEETING in France ALONE, and after that meeting the startling changes were announced (36 and not 126; price higher by nearly 1000 crores; Ambani factor).

    If the above is true, then was Mr Modi given any “document” by his back-office/Def. Ministry BEFORE he left, which reflected a go-ahead for above mentioned decisions at his meeting in Paris?

    If YES, then why did def min Manohar Pariker say “the decision was taken by Mr Modi?” Was Mr Parikar present in that meeting? Why did Foreign Sec Mr Jaishankar give a press conference in which HAL etc was mentioned just a few days before?

    If YES, then does that “document” figure in the dossier that was handed over by government to SC in a sealed cover on 26 October?

    If NO, that means if no well-considered, well-deliberated feedback “document” was given to Mr Modi BEFORE he left for France, then why did Mr Modi NOT INVOLVE Vice Air Chief Dhanoa in discussions who happened to be in Paris during those days? (I heard this on some TV news, that he was in France). After all Vice Chief was the senior most officer, that’s why he became the Chief an year or so later.

    36000 CRORES of public money spent just like that? Country’s security compromised just like that? And even the apex Court of the country cannot ask any questions to the man who is after all an ELECTED person? If office clerks who typed the documents and joint secretaries and secretaries in defence ministry and PMO can know the top security details about price and configuration, then why can’t the CJI and other Supreme Court judges know? Why can’t the ELECTED members of parliament know who were elected by people whose money it was and whose security was, and is at stake?

    If Mr Modi can come out of all this unscathed, then that will be the biggest and cruelest joke in any democracy, leave alone the largest democracy in the world.

    • If Quatrochi Mamaji can come Unscathed by Union Law Minister himself visiting Latin Amecrican country was not biggest and crulest joke in democracy what can you expect now?

  7. But why not ask CAG to do audit first and then CVC /CBI to do an investigation if any scent of corruption is felt.

    • Because it’s not supreme courts job to ask CAG or CVC which are equal constitutional bodies to look into a matter.
      These bodies would have, especially the CAG, looked into the matter anyway because it’s a govt expenditure.
      This is a pure case of judicial overeach and activism. Just trying to set it’s supremacy over other constitutional bodies. Court should have actually asked the petitioners to go to these bodies n wait for their fidnings, thereof.

  8. The apex court is proceeding with utmost circumspection and gravitas, mindful of the import of this matter, not willing to do anything which undermines the majesty of government as an institution. It first sought to satisfy itself that the laid down procedures for defence procurement have been scrupulously followed. Next, it wishes to be apprised of pricing, since it is claimed that the new deal is more beneficial to the public interest, with a figure of 9% discount being mentioned. In an issue that has inevitably got politicised in an election year, Indians can be sanguine that the matter will be examined judiciously, free of bias.

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