decemBER 22, 2018
Rafale Judgment on Trial
Supreme Court can exercise judicial activism only to the extent that the government of the day permits it.
T
he Supreme Court’s judgment refusing to set up an investi-
gation team to look into the Rafale deal has an air of
haste and incompleteness about it. Multiple factual
errors have been pointed out by commentators already, the
most notable one being the Court’s belief that the Comptroller
and Auditor General (CAG) of India had already submitted a
report on the deal to the Public Accounts Committee (PAC) of
the Parliament. While this glaring and obvious error has rightly
absorbed attention in the public sphere, the Court’s judgment
is also based on other questionable assumptions of fact and
avoidance of legal analysis.
What aggravates these errors is the shoddy manner in which
the Court proceeded to hear this case. Despite having noted
that the initial petitioners had filed flimsy and skeletal peti-
tions which deserved to be dismissed, the Court nonetheless
kept the matter alive until a more informed and detailed inter-
vention was made. Even so, throughout the hearings, the Court
never seemed entirely convinced of the need to probe deeper
into the issue.
What happened during the hearings also reflects poorly on
the Court. First, the Court said that it did not want to look into
the pricing aspect of the matter, then changed its mind and
asked the government to provide details of pricing in a “sealed
cover.” Second, when submitting pricing details only in such
“sealed cover” it now appears as if the bulk of the union govern-
ment’s arguments were permitted to be made in the documents
filed in this sealed cover, with no opportunity to the petitioners
to rebut facts. This clearly seems to be the source of the error
relating to the CAG report and the PAC. Whether the union govern-
ment wilfully misled the Court or that the Court misinterpreted
the paragraph is still unclear. Neither answer paints the Court in
a flattering light as even if it is the former, it is the Court’s duty
to allow the other party to rebut such assertions and not rely on
them simply because it has been submitted in a “sealed cover.”
Third, even as it keeps insisting that questions of defence
acquisition are matters beyond its technical competence, the
Court cannot help but make passing remarks on the necessity of
the Dassault Rafale fighters for the Indian Air Force. This seems to
be based on an unstructured and somewhat haphazard “interac-
tion” with air force officers during the hearing. The statements
being made neither on oath nor being recorded in writing in
Economic & Political Weekly EPW decEMBER 22, 2018 vol lIii no 50
any official form, they would have been given short shrift in
a trial court yet the Court proceeds to quote from them with
confidence as the basis to refuse investigation into the deal.
The end result is that far from settling any controversy or aiding
any truth from coming out into the public domain, the Court has
only kept most questions about the deal unsettled, and raised
more on its own institutional capacity to adjudicate such disputes.
To the untrained observer, the Supreme Court’s reluctance to
take on the Narendra Modi-led National Democratic Alliance
government on controversial matters ranging from demonetisa-
tion to the suspicious death of Judge Brijgopal Harkishan Loya
would seem incongruous given the vigour with which the
Court undertook investigations into the scams unearthed in the
final years of the United Progressive Alliance government. An
uncharitable conclusion might be drawn: that the Court can
exercise judicial activism only to the extent that the government
of the day permits it.
But, such a conclusion would also mask some deeper truths.
The office of the CAG, whose draft reports formed the basis for
some of the Court’s interventions is rarely seen or heard of
these days. The Central Bureau of Investigation (CBI), which
the Court depended on to carry out investigations, is in complete
and utter disarray thanks to undue government interference
and internal bickering, with the Central Vigilance Commission,
supposed to supervise the CBI, having stood idly by until it was
too late. Without other agencies working as intended under
law, any Supreme Court intervention in the Rafale deal would
have been, at best, an ill-informed stab in the dark.
The intriguing part of the recent judgment is that it rules out
any foul intention in the deal. The Court seemed to be in a great
hurry to give the judgment relying only on the information given
to it by the government. Although it was the obligation of the
government to give all the necessary information required for
a complete judgment, that seems to have not happened. In such
a situation, the Court should have asked for such necessary
information. It gives us the sense that a more complete judg-
ment is awaited in this case.
Even with the cooperation of these agencies, there is no
guarantee that the Court’s intervention necessarily serves the
purposes of justice or larger constitutional goals. For all the
fire and brimstone of the Supreme Court, the 2G-spectrum
7
EDITORIALS

allocation case ended in a whimper as all accused were acquitted
by the trial court. There has been little by way of mea culpa by
any agency involved in that case.
At some point, the Supreme Court will have to carry out pro-
cedurally more adequate and balanced appraisal of its role in
matters such as the Rafale deal. Is it a balanced arbiter of legal
disputes? Or is it a public inquisitor tasked with unearthing the
truth? Can it choose to be one or the other at its convenience?
With the scrutiny it finds itself under, such introspection cannot
be put off anymore.

8 decEMBER 22, 2018 vol lIii no 50 EPW Economic & Political Weekly