By
Amritananda Chakravorty
On
14th December, 2018, the Supreme Court of India, in a three-judge bench
decision headed by the Chief Justice Ranjan Gogoi, dismissed the bunch of
petitions questioning the Rafale defence deal, and seeking a court-monitored
investigation. Though the court primarily dismissed the petitions on the ground
of jurisdiction, it did get into certain issues of procedure followed in the
Rafale deal, the pricing issue and the choice of off-set partner. Before the
judgment is analysed, it is important to understand that the court had not
issued notice to the Union of India in this case, but had asked them to submit
details of pricing of the aircraft in a ‘sealed cover’, and the note submitted
by the government on the procurement process was undated and unsigned. In fact,
this practice of the court asking the government to submit information in
sealed cover has been much criticised by legal scholars and jurists for being
anti-democratic and against the basic principle of having ‘open courts’. After
Judge Loya’s case, this was the second time that the court was hearing
arguments on merits without requiring the government to submit their response
in an affidavit.
In
terms of the judgment, a cursory examination would reveal many inconsistencies
and contradictions in the reasoning of the judgment. Foremost is the law on the
courts interfering with policy decisions. It is well-established that judicial
scrutiny is limited in cases of policy decisions, since it is in the domain of
the Executive and the Legislature, and can only be exercised in matters of
‘illegality’, ‘irrationality’ and ‘procedural impropriety’. According to the
Supreme Court in the present case, this scrutiny is even more limited in cases
of defence procurement, within the larger ambit of national security. At the
same time, the law remains that if a policy is patently unfair to the extent
that it falls foul of the fairness requirement under Article 14, the court
would not hesitate in striking it down. [In Re: Natural Resources Allocation,
(2012) 10 SCC 1]
It
is argued that the judgment fails to note that all the criteria for limited
judicial review in terms of illegality, irrationality and procedural
impropriety were present in the Rafale deal. With respect to the decision
making process, the court does a very casual analysis of the process that was
followed by the government of India to junk the earlier deal of buying 126
fighter jets, in order to buy 36 Rafale jets from Dassault, and completely
bypassing the procedure laid down in the Defence Procurement Procedure, 2013.
The court also ignored the fact that the French government had not provided any
‘sovereign guarantee’, but only a ‘letter of comfort’, which was not legally
enforceable. In fact, the court itself noted that “some minor deviations’ may
have occurred’, but that was not sufficient to setting aside the contract, or
to order an investigation. The court conveniently forgot its own jurisprudence
in directing investigation in the allocation of 2G Spectrum licences, or
cancelling those licenses on the basis of procedural impropriety.
Even
in terms of pricing, the court adopted a mutually contradictory position, and
was, in fact, deliberately misled by the government. Initially, the court did
not want to look at the pricing details, but then ordered the government to
submit the pricing details in a ‘sealed cover’. The judgment incorrectly noted
that “the pricing details have, however, been shared with the CAG, and the
report of the CAG has been examined by the Public Accounts Committee (‘PAC’).
Only a redacted portion of the report was placed before the Parliament and is
in public domain.” This was a blatant lie, which was mischievously perpetrated
by the government to mislead the Supreme Court. When this lie was caught within
a few hours of the judgment being pronounced, the government was caught
fumbling for excuses, and they later filed a clarification application stating
that it was a typographical error, and it was meant to convey the procedure usually
followed in such cases, and not what had actually happened in the case of
Rafale deal. But anybody who has followed the government action in Rafale deal
or in any other major corruption allegation knows that both the government’s
submission in the court and the clarification application were desperate
attempts to take scrutiny away from the wrongdoings in the Rafale deal. More
than the government action, what is surprising is how did the Supreme Court
fall for this falsity, and believed the government submissions on their face
value, considering how contentious the pricing issue was?
With
respect to the choice of the offset partner, being Anil Ambani’s Reliance
Aerostructure Ltd., the court again made many factual inaccuracies, including
the alleged agreement between Dassault and Reliance Defence in 2012, which was
with Mukesh Ambani’s company, a completely separate legal entity, and not Anil
Ambani’s company. The court ignored the crucial fact that Anil Ambani’s company
had no previous experience in aircraft manufacturing as well as was
incorporated only 15 days before the contract was signed with Dassault in May,
2015.
After
all these analyses based on incorrect facts, the court concluded by saying that
“we, however, make it clear that our views as above are primarily from the
standpoint of the exercise of the jurisdiction under Article 32 of the
Constitution of India which has been invoked in the present group of cases.” It
is noted that this is neither here nor there. If the court wanted to refrain
from exercising its jurisdiction in the present case, it ought to have done
from the beginning, and not after undertaking half-baked analysis of critical
factual points, and accepting the government’s lies without cross-checking
them.
In
sum, it can be said that the Supreme Court missed out on a big opportunity to
clear the grave doubts about the Rafale deal, but it failed to exercise its
jurisdiction. It ignored the fact that no criminal investigation was being
allowed in this case, and when the erstwhile CBI director, Alok Verma, sought
to even look at the documents, he was illegally removed on 23rd October, 2018.
[Manohar Lal Sharma v Narendra
Damodardas Modi, Writ Petition (Criminal) No. 225 of 2018, dated 14.12.2018] (IPA Service)
The post Rafale Judgement: Product Of Lies And Misinformation appeared first on Newspack by India Press Agency.
