The Supreme Court judgement on Rafale Deal is not a clean chit to the Modi government. In pages 6 to 10, the Court has explained in detail that they don’t have the jurisdiction to probe a sensitive defense deal in detail. The Judgement quotes various previous judgements to draw a line which the court cannot go beyond as this is a sensitive defence deal.
The paragraph no. 7 at page no. 7 of the judgement reads “In Jagdish Mandal vs. State of Orissa and Ors., this Court, conscious of the limitations in commercial transaction, confined its scrutiny to the decision-making process and on the parameters of unreasonableness and mala fides.” This means that the Court clarifies before announcing the judgement that probing pricing issues is out of their jurisdiction. Then, how can we give a clean chit to the government regarding corruption?
The paragraph 10 on page no. 9 of the judgement quotes the commentary by Grahame Aldous and John Alder in their book ‘Applications for Judicial Review, Law and Practice’:
“There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government’s claim is bona fide.”
The Court examined this case based on three points:
First, in the decision making process, the Court says that “we have no reason to doubt the process. And even if minor deviations have occurred, we cannot set aside the contract.”
Second, in the pricing issue, the Court says that the price of jets has been audited by CAG and the report has been shared with PAC. But PAC chairman and members of PAC confirmed that they have not received any CAG report on Rafale prices. The Court says that “It is not the job of the Court to compare pricing details in these matters.” This clearly means that the Court found it out of its jurisdiction to probe the pricing of Rafale jets and agreed whatever the government claimed in the Court. This is a very serious issue because the government has clearly misled the Court about CAG report being submitted to PAC.
Third, on the questions of Reliance being given the deal, the Court said that “it is not within the experience of this court to step into this arena of what is technically feasible or not.” The Court also said that there was a deal between Dassault and Reliance Company, which is the parent company of Reliance Aerostructure Limited, from 2012. This is factually wrong as the parent company of Reliance Aero is Reliance Anil Dhirubhai Ambani Group, headed by Anil Ambani. Reliance Company is headed by Mukesh Ambani. There is no connection between the two companies. Both are separate companies. But the Court didn’t raise any objection over the offset partner.
In the last page the Court says that they found no reason to intervene on this sensitive issue. However, the Court clarified that this judgement was just according to Article 32 of the Indian Constitution. Article 32 provides that individuals can move the Supreme Court to enforce their rights, and that the Court can issue writs to that end.
Overall, yes, the Court clearly said that they don’t find anything wrong in this deal. But this judgement was based on jurisdiction, not on merit. The Court seemed to believe everything the Government claimed before the Court as they maintained since the beginning of the judgement that they cannot probe the government’s claim in depth in sensitive defence deals.
The main question regarding the increase in price of Rafale jets is still alive as the Court is clearly misled by the government that the CAG has submitted its report to PAC and the Court didn’t have jurisdiction to question this.
The question regarding the offset partner is still alive as the Court said that it is out of their experience to step in technical matters like these.
If probing a defence deal was out of judicial jurisdiction, then Supreme Court should not have entertained the petitions in the first place.