The dismissal of a batch of writ petitions seeking intervention on the Rafale fighter jets purchase has raised three sets of concerns: One is as to whether the opposition, the Congress president Rahul Gandhi in particular, has lost what could have been a campaign point against the incumbent BJP in the elections scheduled for May 2019? Two whether the Supreme Court has absolved the Government of any wrong doing in the deal? And three whether the Supreme Court rendered justice to the case?

Let me enter into a caveat at the outset: The three questions do not belong to distinct silos and hence ought not to be answered in that order. In other words, they are integral to the concept of democratic governance. Following this, it is not sufficient that the court of justice delve into whether the procedure established by law was followed in the petition seeking a writ under Article 32 of the Constitution although it is necessary. The sufficient condition in such instances is to delve into the due process of law; in other words, to pierce the veil of procedural conformity and see if the consequences are just and fair as well.

It is not necessary, at this stage in our nation’s judicial history, to raise arguments to establish the efficacy and significance of the due-process-of-law framework as against the procedure-established-by-law jurisprudence. Beginning RC Cooper (the Bank Nationalisation Case) and elongated in Maneka Gandhi case (on whether the state had the right to impound someone’s passport at will), the Supreme Court has set the scope for a jurisprudence that empowers the higher judiciary to pierce the veil and see the consequences of a law/act/decision on the people and on democracy in general. The judges, however, held the case in point was beyond their jurisdiction and hence dismissed the petitions; and in doing so departed from an established principle that the courts shall pierce the veil and not just read the averments in the pleadings.

As Lord Dennings, an authority on jurisprudence, observed in his foreword to Rajeev Dhawan (titled The Supreme Court of India-A Socio-Legal Critique of its Juristic Techniques, 1977):

Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision -- on every new situation -- is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect, thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.

Their Lordships, with all due respects, in this case seemed to have pierced the veil, but did not follow it up with seeing through what was behind the veil; nor did they consider it important to see through all that was presented to them. As for instance the fiction that the Government, by putting in notes of a CAG report and of this having been scrutinised by the Public Accounts Committee of Parliament, in a sealed cover it submitted to their Lordships, was taken on face value by them. They could have asked the petitioners about these in the open court while hearing them; they did not.

Their Lordships could have also asked the Government, through its counsels, as to why the CAG’s report and the evidence of the PAC’s scrutiny of it are clothed with the gown of secrecy and be the contents of documents in a sealed cover? Their Lordships cannot and are not ignorant that the CAG is as much a Constitutional office and PAC is not one of the kind as the CBI, NTRC or RAW is and hence part of its activity is shrouded in secrecy. The CAG report ought to be placed on the floor of both Houses of Parliament along with an Action Taken Report (ATR) by the Government. The PAC, similarly, lays its report bare for everyone to see and these are the democratic frames of our Constitutional scheme. It is, hence, not the proper thing for the Government to have kept these secret and sow them only to the learned Judges of the Supreme Court.

The Chief Justice and his brother judges also conveyed that they were not going to be influenced by the media: Fair enough. The judiciary shall not play to the gallery. But then, given the stature that the media has been accorded in our constitutional scheme and the elongation of the scope of Article 19(1)(a), the Right to Free Speech, of our constitution by the apex court over time, it is sad that their Lordships held the media and the reports with a certain contempt. Without imputing motives, it must be said that the Rafale scandal was raised in a section of the media (sadly not all of them) long before the former French President, Hollande, spoke to a journalist about being ‘told’ on who shall be chosen for the offset contract.

The opposition parties raised the issue in Parliament; the issue was raised as to why the Public Sector HAL was denied the offset contract? The issue as to whether the price per plane now is higher than what the incumbent government agreed before was raised in Parliament and outside long before Hollande spoke of the deal. And Hollande was not just a by-stander and happened to be the French President when the deal was sealed after the earlier version of the Rafale deal was scrapped.

Having said this, let me try answering the second set of concern: There is nothing in the judgment to hold that the Government has been absolved of all charges and that the Rafale deal with Dassault is a squeaky-clean agreement. The last sentence paragraph of the judgment says this in so many words and it is best to quote that:

We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.

And herein lies a response to the concern about the Congress party and its loss of an issue: Well, the party’s own Mallikarjun Kharge, who happens to be the chairman of the PAC has taken the lead. He has declared that no such CAG report, as claimed by the Government in the ‘secret’ papers submitted to the court, had come to the PAC. The Congress party, indeed, has got another stick to beat and further its campaign that all is not well with the Rafale deal. The jury is open.

First Published:Dec 15, 2018 6:19 PM IST