If there is one takeaway from the Supreme Court’s decision on Friday to dismiss the PILs alleging irregularities in the procurement of 36 Rafale fighter jets by the government it is this: The political controversy does not pass the legal test. The Narendra Modi government’s decision in 2015 had sparked a political squall beginning in December last year, when the country’s main Opposition party, the Congress, raised questions over the procurement process, the price of the fighter jets and the choice of Indian partner for the French aircraft manufacturer — Reliance Defence. The judiciary was drawn into the matter two months ago, when four PILs sought a Supreme Court-monitored review to investigate these alleged irregularities. On Friday, the court exonerated the government of procedural impropriety.
The Supreme Court has emphasised that its decision draws “primarily from the standpoint of Article 32 of the Constitution”. In other words, the apex court approached the Rafale case within the parameters laid out by its powers of judicial review. At the outset, it says that “the SC would refrain from undertaking in-depth examination of policy decisions of the executive, especially in matters concerning national security and defence”. It goes on to say: “We have studied the material carefully. We have the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court.” And: “Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters”. Essentially, the court has acknowledged that its powers of scrutiny of executive decisions are constitutionally circumscribed, and that it must draw a line lest it should trespass into decision-making, which is the domain of the executive. It has rightly upheld the principle of separation of powers between the executive and the judiciary.
The Opposition, including the Congress party, can, of course, continue to ask questions of the government. The Rafale issue did feature during the campaigns for the recently-held polls to the state assemblies in Rajasthan, Madhya Pradesh, Telangana, Chhattisgarh and Mizoram — it may or may not have played a role in determining the outcomes. Now, the Congress-led Opposition is demanding a Joint Parliamentary Committee (JPC) probe. The party’s own experience with long-drawn controversies over defence deals, however, holds many a cautionary note. The political sparring over allegations of corruption can often be misleading in as much as it skirts the rigour of due process. And it can be perilous — because at stake is the credibility of the system, and the people’s trust in its capacity to tackle cases of high-level corruption fairly and effectively.