The Supreme Court verdict dismissing all petitions seeking an independent court-monitored investigation into the Rafale deal has raised many questions than answers. Every stakeholder is citing different paragraphs of the verdict for their own arguments. The Bench led by Chief Justice Ranjan Gogoi observed that there is no evidence of wrongdoing in the government’s decision-making process or in the choice of Reliance Defence Ltd as one of the Indian partners and refused to go into the pricing details.
The Bench did not find any substantive reason for a judicial intervention in the sensitive issue of purchase of 36 defence aircrafts. However, the observation in para 25 which stated that the government has already shared the pricing details with the Comptroller and Auditor General (CAG), that the report has been examined by the Public Accounts Committee (PAC) and only a redacted version of the report is placed before Parliament and is in public domain, created chaos in political circles.
The Centre instantly submitted an explanation in the Court that its submission to the effect that the report of the CAG “is” examined by the PAC, was a description of the procedure which is followed in the normal course, in regard to the reports of the CAG. The very fact that the present tense “is” is used would mean that the reference is to the procedure which will be followed as and when the CAG report is ready.
The reference to the word ‘is’ has been replaced with the words ‘has been’, in the SC verdict resulting as “the report of the CAG has been examined by the Public Accounts Committee.” Similarly, the statement that only a redacted version of the report “is” placed before Parliament, is referred to in the judgment as “only a redacted portion of the report was placed before the Parliament, and is in public domain.”
In spite of this altered affidavit by the Centre, nothing substantial is going to happen as the ratio of the verdict seem to be clear. The Bench has made it clear that the scrutiny of the challenges will have to be made considering the precincts of national security, the subject matter being critical to the nation’s sovereignty. It is definitely not the court’s job to compare the price details especially in sensitive matters like this. While on choosing the Indian Offset Partners (IOPs), the court did not find any substantial material exhibiting commercial favouritism to any party by the Indian government, because the selection of IOPs was not within the Centre’s domain.
The Bench also made it clear the court can neither question the wisdom of the government to purchase 36 aircrafts in place of 126, nor can it compel the government to go in for purchase of 126 aircrafts. The CJI rather reinforced the claim that the nation cannot afford to be underprepared, when our opponents have already acquired fifth generation fighter aircrafts. The suitability of the Rafale fighter jets and their utility to the Indian Air Force was not questioned even by the petitioners. What petitioners suspected is the decision-making process and the price at which the jets were proposed to be purchased.
The whole politico-legal discourse raises two important and disturbing questions concerning our institutions; first, the ever-diminishing role of the PAC in our Parliamentary system and second, dragging the SC into all such policy decisions of the government will politicise our highest appellate court.
The committee system was devised in a Parliamentary system as an effective inter-organ control device that keeps the Executive accountable to Parliament. History reveals that parliamentary committees have been vital institutions in democracies such as the US, UK, Canada, Australia, etc. However, the PAC has deliberately been transformed into a toothless tiger by all the governments in power.
The politicians in power along with compliant bureaucrats have not only advanced a vested interest for secrecy and evading accountability, but perfected the art of treating parliamentary committees as useless bodies. Unfortunately, parliamentary and pre-legislative exercises over several years hardly did anything radical to remove this vested interest. The non-functioning of this inter-organ control device increases the SC’s workload.
Activist lawyers like Prashant Bhushan and others try to bring all political and policy-related matters before the SC. In the lack of a precise judicial policy on political questions, the different SC Benches in their selective and subjective wisdom choose whether or not to intervene in these matters. This extended horizon of judicial review was originally seen with reverence but excessive use of it now is triggering politicisation of the apex court.
Instead of dragging the SC into all such matters, we must try to revive and fortify our committee system, which is supposed to serve as the key element for ensuring executive accountability. The very fact that there is someone who will examine what has been done by the government is an effective check on the laxity of the Executive. A proper scrutiny will not only lead to general efficiency of the administration but would also serve as a guide for future approximations and policies.
We need to devise a strong legal mechanism whereby it is mandatory for all governments in power to send all foreign commercial deals to the PAC. It should not be left at the mercy of the Speaker who invariably functions on the instructions of the government. This would go a long way in ensuring the government’s accountability and establish an unblemished and virtuous parliamentary democracy.