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Rafale Verdict: A Judicial Hands Off Was Not an Option

The main basis of this judgment is CJI’s assertion about the limited scope of judicial review in the writ jurisdiction under Article 32 of the constitution. 

Supreme Court that had ordered- NIA probe even into the so-called love-jihad in a case dealing with the marriage of two adults; ordered cleanliness of drains in Ratlam; cancelled petrol pump allotments of even discretionary quota of Petroleum Minister; supervised CBI investigations in the Jain hawala case; passed several orders against the BCCI which is not even state has now refused to order any probe into the Rafale deal that looks suspicious and arbitrary for more than one reason. 

What Critics Said About the Rafale Judgment

CJI Rangan Gagoi who had earned lot of admiration for his remarks about the usefulness of noisy judges and journalists in a vibrant democracy has been severally criticised for his controversial judgment on Rafale. In view of its reference to non-existent CAG report, few said there is no judgment at all. The court refused to attach much importance to the newspaper reports about the Ex-French President’s statement but in several cases courts had suo moto taken notice of newspaper reports or letters written them or even to the editors of newspapers. Most critics have found faults in the judgment due to over reliance on an unsigned-undated note by the government and on the unverified information given in a sealed cover. Too many quotes from the note have also come under severe criticism as court was not expected to treat every statement made in the government note as the gospel truth especially when the same was not even shared with petitioners. The court in its order did see merit in  some of the  petitioners’ objections to the  Rafale deal but treated them as mere ‘minor deviations.’

But the main basis of this judgment is CJI’s assertion about the limited scope of judicial review in the writ jurisdiction under Article 32 of the constitution.  CJI has also talked about the consistent position of the court in not examining the policy issues. While at the first glance it seems CJI is right but a closer examination of these two issues reveals that CJI’s options were not all that limited.

Rafale deal
Representational image

Article 32 as Soul of the Constitution

B.R. Ambedkar himself has termed Article 32 as the soul of the constitution and its most important article. Justice Gajendragadkar also said that no other constitution of the world had made the remedial article as fundamental right. This fundamental right is to be used to protect other fundamental rights. 

Though the expression ‘judicial review’ has not been used in the constitution of India but unlike United States, Indian constitution expressly gives power of judicial review to the Supreme Court under Article 32 read with Article 13. Judicial review is an exception to separation of powers and thus many a times courts did deal with the matters which ordinarily should be within the exclusive domain of the executive.

The phrase ‘directions or orders or writs in the nature of’’ in Article 32 give extremely wide powers to the court. Moreover, the visionary framers of the constitution did not include this  power of the court in the Part V, Chapter III dealing with the powers of the apex court but placed it in Part III of the constitution dealing with  the fundamental rights. Being a fundamental right in itself, Art 32 provides a ‘guaranteed’ remedy and one can directly go to the Supreme Court for the violation of any fundamental right. No other fundamental right has been guaranteed in these explicit terms.No other fundamental right uses the expression right is ‘guaranteed.’ The court itself has held that it has been assigned the role of a sentinel on the qui vivefor the protection of fundamental rights(Ujjan Bai). To invoke Article 32, it is not necessary that the fundamental right must have been actually infringed- a threat to the same would be sufficient. However, if injury to the alleged fundamental right is too indirect or remote, recourse to the Article 32 may not be permissible {State of Rajasthan (1977)}.  The court thought the alleged arbitrariness in the Rafale deal was too indirect or remote and thus rejected the petitions challenging the deal.

In exercise of its powers under Article 32, Supreme Court has even created several new fundamental rights such as right to live with dignity, right to healthy environment, right to information, right speedy trial etc. In the privacy judgment the court recognised right to privacy as fundamental right though framers of the constitution had excluded it.

Also read:  BJP’s Attempts to Cover Up Rafale Scam have Spectacularly Failed

Moreover, Supreme Court can invoke its extraordinary power of doing complete justice and pass any order it wishes under Article 142 of the constitution. Though this power is not to be used if there is a statutory provision but in several divorce cases, court did permit divorce before the expiry of mandatory period of separation.

Right Against Arbitrariness

In interpreting right to equality, Supreme Court added the additional requirement of rationality and non-arbitrariness. Thus court certainly has the power to examine how the deal of 126 Rafale aircrafts was changed to just 36 and how country’s crucial defence capabilities can be adequately enhanced with just 36 Rafale aircrafts. If this change was arbitrary as it on the face of it looks like, Supreme Court should not have refused to get it probed by referring to its limited role under writ jurisdiction under Article 32. Similarly in deciding arbitrariness, court could have legitimately examined crucial issues ie how the benchmark price was altered at the last minute or why decision on benchmark price was not taken by the defence ministry but by the Cabinet or when was the old deal abandoned and new finalised or did new deal comply with the established procedure and how the deal without sovereign guarantee promotes the so-called national interests.

Supreme Court & Policy Decisions

The other justification of court’s refusal to order any probe was the limited scope of judicial review in policy decisions. While as a general principle CJI is absolutely right that courts should  ideally stay away from the purely policy matters or political issues yet the Supreme Court has been asserting its powers even to examine policy matters.

What is policy decision? If it means social-economic goals, court cannot interfere but if it means even the methods by which such goals are to be realised, courts do have a right to examine such methods. The court itself has held that if constitutionalism is the ultimate policy of the republic and the constitution nation’s ultimate policy document of the nation, courts must examine the policies wherever there is possibility of misuse of power and cannot shy away from their constitutional duties.

What to say of mega defence contract like Rafale as policy matter, even the government’s discretion to award the contract of a canteen to the highest bidder at the airport has to be rational, fair and non- arbitrary.In R.D. Shetty(1979), the apex court dealt with the question state’s power to award contract to any person without any constitutional limitation and Justice Bhagwati observed-‘every action of the executive government must be informed with reason and must be free from arbitrariness. That is the very essence of rule of law and it is bare minimal requirement.’

It must, therefore, be taken to be the law that where the government is dealing with the public whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other form of largesse, the government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. In Shayra Bano(2017), apex court did not permit even a private person(husband) the luxury of indulging in arbitrary action in his matrimonial relations ie triple divorce. What is not permitted to a private person cannot be permitted to the state in the name of policy decision. The government has now made this purely civil matter as non-bailable crime.

Also read: Entire Paragraph Can’t Be a Typo: Mallikarjun Kharge Demands JPC Probe in Rafale Deal Scam

CJI relied on the precedents in which court refused to examine policy issues.  In RC Coopar(1970) for instance apex court had observed- ‘It is again not for this court to consider the relative merits of the different political theories or economic policies … This court has the power to strike down a law on the ground of want of authority, but the court will not sit in appeal over the policy of Parliament in enacting a law.’  In Duncan Industries(2000) court said that it will not interfere with the valuation unless the methodology adopted was arbitrary.

Similarly in Premium Granities(1994) while considering the court’s powers in interfering with the policy decision, Supreme Court said that ‘it is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether  a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be.’ Thus CJI took the position that even if Modi government’s decision in Rafale deal is not the best decision or price negotiated is not the best price, the court need not interfere. He also justified his refusal to scrutinize the deal in the name of security of state, defence needs of the nation and acquisition of fifth generation weapons by our enemies.

CJI was also conscious of the fact that the court has been repeatedly clarifying that in democracy it is the prerogative of each elected government to follow its own policy. Often a change in government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered by the court.

Determining Mala-File in State Action

In Pratap Singh(1964), court held that ‘we must, however, demur to suggestion that mala fide in the sense of improper motive should be established only by direct evidence. What is bad-faith? The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or to favour a private person. Thus certainly the change of policy cannot be challenged but in Rafale many think it was not just a mere change of policy. It seems petitioners were not able to convince the CJI about the existence of direct evidence of mala fide and bad faith by the Modi government.

Also read: Rafale Judgment Based On Non Existent Facts, Needs To Be Recalled: Indira Jaising

Moreover in Nandlal Jaswal(1986), it was held that there are two important factors that throw light in determining whether a policy decision is mala fide- one relates to manner and method of reaching the policy decision and the other to the circumstances in which policy decision is taken and the considerations which have entered into making of it. If it was not made by one individual but in an institutionalized manner on the recommendation of experts, it is not mala fide. CJI   took note of about 70 meetings that took place prior to finalizing Rafale deal. But now there are reports that show that there were dissenting opinions expressed in these internal meetings.

But there are judgments in which court has asserted its power to examine even the purely political/policy questions. In State of Rajasthan(1977), Supreme Court observed that ‘merely because a question has a political complexion that by itself is no ground why the court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. A constitution is a matter of purest politics.’ 

The Supreme Court in its 2G judgment also dealt with the policy issue and cancelled 122 contracts.It was especially scathing about the “first-come-first served-policy” employed by the government and the fixing of cut-off dates. The court said that the material produced before the court showed that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer.”

In Minerva Mills (1980) the court said that merely because a question has political colour, the court cannot fold its hands in despair and declare ‘judicial hands off.’

In fact in many cases the court itself  without hesitation not only dealt with the policy matters but  itself framed  the policies or dictated government to frame policies as desired by it such as in sexual harassment of women at the workplace in Vishakha(1997) and on Khyap Panchayat in Shakti Vahini(2018) and recently on witness protection in Mahender Chawla(2018).

Also read: Rafale: Not Just the CAG Report, Other Glaring Anomalies in the Supreme Court Judgement

Another lesson from the Rafale judgment is that we should not take sensitive matters to the court without adequate preparation though in many cases supporters of the government on their own file PILs to get them dismissed. Parliamentary forum is better suited for such issues. In Delhi Science Forum(1996) where privatization of telecommunication policy was challenged, the court had said: ‘the national policies in respect of economy, finance, communications, trade, telecommunications and others have to be decided by Parliament and the representatives of the people on the floor of Parliament can challenge and question any such policy adopted by the ruling government.’ Thus government cannot refuse the JPC on Rafale as according to apex court such matters should be left to Parliament.

The author teaches Law and is Vice-Chancellor NALSAR University of Law, Hyderabad. The views are personal.

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