Scope of apex court’s intervention

Published : Oct 24, 2018 12:30 IST

ON October 10, three petitions were listed before a three-judge bench of the Supreme Court comprising Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph seeking its intervention to make the Rafale deal more transparent and ensure accountability of the key players. But even before the bench heard the petitions, doubts were cast whether the petitioners had the public interest in mind in approaching the Supreme Court or were motivated by extraneous considerations. It was felt that as the court was likely to reject the petitions on the grounds of lack of jurisdiction and competence, it would be construed as a “clean chit” to the Centre on the merits of the deal.

One petitioner, Tehseen Poonawalla, sought the court’s permission to withdraw his petition because he, like the Congress party to which he belongs, realised belatedly that the court was not the right forum to seek disclosure of the details of the deal. The bench granted him permission to do so and dismissed the petition as withdrawn.

The bench heard the other petitions and found that it needed some details of the decision-making process that resulted in the deal with France before answering their main prayers for intervention. It said:

“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.

“We also make it clear that the steps in the decision making process that we would like to be apprised of would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirement of the Indian Air Force.

“The requisite information sought for will be placed before the court in three separate sealed covers on or before 29th October, 2018, which shall be filed with the learned Secretary General of this court and not in the registry. List the matters on 31st October, 2018.”

It is clear that the bench has concluded that the petitioners made inadequate and deficient averments and that their petitions deserved to be rejected on these grounds. Yet, the bench appears to have reserved its decision to dismiss the petitions, until it finds some bare details, as the Centre is willing to provide, so as to satisfy itself about the “legitimacy” of the decision-making process. The bench has made it clear that it is not concerned with the pricing or suitability or with the averments in the writ petitions.

However, the bench’s decision to ask the Centre to share the details of the decision-making process with it in secrecy is inexplicable as the same will, in any case, be devoid of pricing and technical aspects, as directed by it. Curiously, the petitioners themselves did not suspect that the decision-making process, resulting in the deal, was not above board. They only alluded that the price of the jets was inflated and that Anil Ambani’s Reliance Group might have been made Dassault Aviation’s offset partner for extraneous considerations.

The Attorney General, K.K. Venugopal, told the bench that this was a political interest litigation intended to achieve a political objective and not a judicially reviewable issue. As the issue involved national security, he pleaded helplessness, saying that even he could not have access to the details of decision-making.

The bench’s decision not to issue notice to the Centre means that the latter need not disclose anything on the affidavit that could be rebutted or challenged by the petitioners during the proceedings.

Ironically, civil society activists seeking greater accountability on the deal and the Centre itself seem to agree that the court is not the right forum to resolve the controversy, albeit for different reasons. Civil society activists, who are genuinely concerned about the non-transparent aspects of the deal, are equally worried that the outcome of the case in the Supreme Court—a likely dismissal of the petitions—should not be interpreted as a clean chit to the Centre. The activists’ concern, in part, stems from the profile of the petitioners who are before the Supreme Court.

Vineet Dhanda, a Mumbai-based advocate, said in his petition: “It is respectfully stated that the criticism [against the Prime Minister on the Rafale deal] had reached a proverbial nadir. The critics in the opposition parties have adopted a very ignominious and profligate way even to criticise the Prime Minister.” Dhanda sought a sealed-cover report from the Centre in the larger interests of the Prime Minister and the country’s international reputation, although it is not clear how disclosure of the details of the decision-making process, under secrecy, only to the court, could achieve that purpose.

The petition filed by Manoharlal Sharma, also an advocate practising in the Supreme Court, sought quashing of the Rafale deal as illegal and the prosecution of Prime Minister Narendra Modi and the then Defence Minister, Manohar Parrikar. Sharma emphasised that “at least” the Supreme Court needed to know about the deal in order to put a “full stop to denigrating statements”. Sharma, like Dhanda, justified the need for sharing the information with the bench in a “sealed cover” as it may contain sensitive details about the country’s defence.

If the bench found the averments in the petitions inadequate and deficient, observers wonder how it agreed with their main prayer that the Centre be asked to share information about the deal in a sealed envelope. Having agreed to this prayer, which also suits the Centre, the bench would be unable to answer the criticism that in a democracy the government must account for expenses from the public exchequer in a transparent manner and denial of this responsibility by resorting to the “national security” cover is unconscionable.

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