The Supreme Court judgment dismissing the bunch of public interest petitions seeking a court-monitored probe into the Rafale fighter deal has given the Narendra Modi government a shot in the arm, but may not yet shield it from attacks by the opposition in Parliament.
The government would claim to have received a clean chit from the court, which is likely to be hotly contested by the opposition. The latter's argument could be that it is only a court-monitored probe that has been ruled out by the court; and there is no bar, as there can never be, on a joint parliamentary probe. To that extent, the opposition could argue that the judgment gives all the more justification for a parliamentary probe, since jurisdictional issues rule out a court-monitored probe.
More significantly, the fact that the court has also seemingly erred in its observation that “the pricing details have... been shared with the Comptroller and Auditor General... and the report of the CAG has been examined by the Public Accounts Committee...” is also likely to be used by the opposition to argue that the government might have misled the court.
In fact, even at the press conference held by the government within hours of the delivery of the judgment, Finance Minister Arun Jaitley evaded a media question about how the court has made this observation.
The fact is that the matter is still pending with the CAG which is yet to submit its report to Parliament. And only after the report is tabled in Parliament would the PAC, which is a body of Parliament, be able to take it up. The CAG does not submit its report direct to the PAC.
The court has largely based its order on the principle expounded in the Jagdish Mandal vs. State of Orissa and Ors. judgment that it is “not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review. The award of contract, being essentially a commercial transaction, has to be determined on the basis of considerations that are relevant to such commercial decisions, and this implies that terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that the same have been tailormade to benefit any particular tenderer or a class of tenderers.”
The court was also restraining itself from interefering in a matter in which it has limited knowledge and expertise. “The tender is not for construction of roads, bridges, etc. It is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself.” Here the judges have quoted 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. In this kind of nonjusticiable area judicial review is not entirely excluded, but very limited...”
In an October order over the first two writ petitions, the court had indicated that the issue of pricing or matters relating to technical suitability of the equipment would not be gone into by the court. The court asked for those details, in a sealed cover from the government, only to satisfy itself of the correctness of the decisionmaking process.
The court has also indicated that it was not interefering in a national security issue since “we cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts [sic] in place of 126” which was the original intent. “Our country cannot afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquried not only 4th generation, but even 5th generation aircrafts [sic] of which we have none.”
The government's primary defence against the opposition attack could be that the court has upheld its position that the government had no role in choosing the offset partner, Reliance Defence. The partner was selected by Rafale, as it was empowered to under the stated procurement policy and procedure.
The opposition's counter to this could be that the court has refrained from examining the issue whether the claims of the public sector Hindustan Aeronautics Limited as an offset partner had been deliberately ignored. “...It is neither appropriate nor within the experience of this court to step into this arena of what is technically feasible or not,” says the judgment.
Before parting with the judgment, the court has reiterated that its views on the matter “are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution”. This could be used by the opposition that they would be still morally and procedurally justified to raise the issue in Parliament and other public fora. Matters of rightness or otherwise of policy may be beyond the purview of the court, which are well within the purview of Parliament.
