‘No jurisdiction’ but Supreme Court still rules on Rafale

The SC order dismissing petitions challenging Rafale deal is a curious one. It says SC has no jurisdiction to examine sensitive defence deals but goes on to pronounce it didn’t find procedural lapses

PTI Photo
PTI Photo

Uttam Sengupta

Strange are the ways of the Supreme Court. It first admitted a batch of petitions praying for a court-monitored probe in the Rafale deal. It then declared that it would examine if it had jurisdiction to examine a sensitive defence purchase deal. Thereafter it called officials of the Indian Air Force to the court to brief it on defence preparedness of the Indian Air Force. And, finally it concluded that

  • From the standpoint of jurisdiction, it is not for the court to examine the feasibility, pricing , technical aspects etc. of the deal. That there are limits to judicial review and national security is a paradigm which the courts regard themselves as incompetent to investigate.
  • The court also stated that it is not for the judiciary to examine the wisdom of purchasing 36 planes and not 126 as contracted earlier
  • And it is not for the court to examine pricing of the planes
  • Had the apex court stopped there and dismissed the petitions, eyebrows would not have risen. But for reasons which are not entirely clear, the Supreme Court also went on to rule that
  • There is nothing on record to suggest any commercial bias in favour of one Indian company.
  • Since the earlier deal was not coming through, there were compelling reasons for a new deal
  • The court is satisfied that there were no procedural flaws.

This has been interpreted by the BJP and the Government as a ‘clean chit’ by the apex court. But surely the court could have asked for a time-bound inquiry by the CBI or the CAG to answer the following questions:

  • Did the Prime Minister of India have the authority to decide on a defence deal on his own in April, 2015?
  • Was the cabinet’s approval obtained after the deal was announced?
  • While the Modi Government claims the earlier deal was not coming through, did Dassault announce a fortnight before the new deal was announced that the old deal was all but sealed and signed?

The apex court is not only silent on these questions, it makes no mention of the new deal cutting off Hindustan Aeronautics Ltd in favour of a private sector company with no history or experience in aviation or avionics.

While the court has stopped short of declaring that it found no evidence of illegality, irrationality or procedural impropriety, the order is unlikely to silence the clamour for a probe by a Joint Parliamentary Committee.

Meanwhile, the order received mixed reactions with BJP president Amit Shah demanding an apology from the Congress President and the Congress reiterating its charges and demanding a JPC into the deal.

In a tweet, defence analyst Ajai Shukla described the judgment as a ‘flawed’ one.

“Respite for the BJP, three days after its election debacle. Today the Supreme Court — in a thoroughly flawed judgment — dismissed petitions seeking a CBI inquiry into the Rafale deal. Instead, three judges with no tech or military knowledge, cleared deal on all counts”

Journalist and columnist Nikhil Wagle wondered why the BJP was opposed to a JPC. “If Modi and BJP is so sure about #RafaelDeal, why don’t they agree on JPC investigation? Let people know everything,” he tweeted:

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