SC Decision To Stay Clear On Rafale Is The Right One; It Should Have Junked The PIL On Arrival

The Supreme Court has decided to send the public interest litigation (PIL) seeking the appointment of a special investigation team to probe the Rafale fighter aircraft deal to where it belongs: the dustbin.

A bench headed by Chief Justice Ranjan Gogoi, and with Justices Sanjay Kishan Kaul and K M Joseph on it, found no basis for judicial intervention on any of the three major contentions of the petitioners, including the decision-making process involved in ordering 36 ready-to-fly aircraft with Dassault, the pricing of the aircraft, and the induction of the offset partner.

Anil Ambani’s Reliance Aerostructure is one of the offset partners, and his induction had raised eyebrows because he has had no prior experience in defence manufacturing. At one point, former French President Francois Hollande muddied the waters when he suggested that Ambani was chosen at the Indian government’s insistence, but Dassault has steadfastly denied this pressure. But as a junior partner in Dassault Reliance Aerospace, one wonders whether experience was all that important in Dassault’s choice of Ambani in this partnership.

Clearly, these factors must have weighed with the Supreme Court bench when it said today (14 December) that it did not “find substantial matter to interfere with (the) issue of procurement, pricing and offset partner in (the) Rafale jet deal.” The judgment will give the Narendra Modi government a huge sense of relief, for it could have blown up into a major campaign theme in the run-up to the 2019 general elections.

More important were the reasons given by the court for rejecting the petitioners’ request, who included usual suspect Prashant Bhushan, and a motley group of busybodies, including former National Democratic Alliance ministers Arun Shourie and Yashwant Sinha, Aam Aadmi Party leader Sanjay Singh, and two other lawyers, M L Sharma and Vineet Dhanda.

The bench said that it was “not correct for the court to sit as an appellant authority and scrutinise all aspects (of the Rafale deal)”, including its pricing. The court emphasised that it was not “proper for the court to examine each aspect of this case; it isn’t the job of court to compare pricing details.” Hence, “detailed scrutiny of Rafale deal is not required.”

The judgment ensures that no further damage is done to the country’s defence interests and to other independent institutions under the Constitution, including the Comptroller and Auditor General (CAG), which scrutinises all government programmes and deals. It is not the court’s job, except in exceptional cases, to keep intruding into the domains of anti-corruption and investigative agencies like the CBI, the police or the vigilance commission.

Given the nature of the comments made in the judgment, one wonders why the bench even entertained these petitions, when it could merely have directed CAG to look into the matter, and deliver its observations as early as possible. What was the need for the bench to not only seek a note on the procedures following in the deal, but also the pricing details in a sealed cover?

One can, of course, suspect that there was wrongdoing or favouritism – though the bench specifically mentioned that it found “no substantial evidence of commercial favouritism to any private entity” – but the right way to deal with suspicion is to find the evidence, file an FIR with the police, get an investigation started, and see what you get.

At the political level, it is fine for the Congress to demand a Joint Parliamentary Committee probe into the deal, though there is no reason for the government to oblige. The opposition is anyway free to rake up Rafale as an election issue.

What was wrong was for the courts to keep getting into such matters, when there are other constitutional and legal authorities to take care of the matter.

It is obvious that vested interests are using the judiciary to advance their own political and other agendas, which may include an animus towards the Modi government, and it is high time the Supreme Court put a stop to this.

Politicians and aggressive lawyers should not think that the judiciary is a shortcut to getting their way, when the right route is to take the trouble to get the evidence, register an FIR, and/or raise the issue politically before the people of India.

The courts should be wary of entering into political debates, and one hopes that the Supreme Court will reject such attempts at the preliminary stage itself. It needlessly inserted itself into questions like whether the processes were right, whether the pricing was right, and whether the country should buy 36 Rafales or 126. While it pulled back from the brink in this judgment, the next time it should not even bring itself into the picture; otherwise, vested interests will try to shoot using its wide shoulders. That, as we have repeatedly noted in Swarajya, is the way to kritarchy, or rule by judges.