Rafale controversy: Supreme Court verdict is no clean chit to govt; deal may be ill-advised without being illegal

The Supreme Court’s Rafale deal judgment is what I would like to call a judgment delivered out of “institutional trauma”. This is not the trauma suffered by an individual in an institution but the trauma that the institution itself is suffering due to past events and mistakes. This may seem incongruous — after all, an institution is not flesh and blood and certainly not capable of emotions, so where does the question of trauma come in?

It comes in, I think, because the individuals who are in charge of the institution are keenly aware of the institution’s past and its mistakes, and are responding to the deeply negative feedback the institution received because of such mistakes. One could see the entire set of procedural innovations that led to the growth of public interest litigations as a response to the institutional trauma the Supreme Court underwent during the Emergency and its failure to uphold the rule of law.

File image of the Supreme Court. AP

File image of the Supreme Court. AP

In a similar vein, I would argue that the mistakes it has made in PILs in the past has made the Supreme Court as an institution wary of venturing too far in recent PILs, especially where they involve getting into complex questions of fact and setting in motion the criminal law. Chief Justice of India Ranjan Gogoi may not say it, but underlying the reluctance to enter into the controversy in the Rafale deal is the backlash the Supreme Court has faced over the failure of prosecutions in the Jain diaries and the 2G spectrum allocation case. Even the coal scam seems to have snagged no big fish and led the bureaucracy to feel that they are being unfairly targeted in the process.

The present proceedings in the Supreme Court were the result of former French president Francois Hollande seeming to suggest that Dassault (and the French) had to accept Reliance Defence as a partner on the insistence of the Indian side. Assuming this to be true, (even though Hollande attempted to walk it back) it is a somewhat thin basis to demand criminal prosecution of all concerned. For one, it does not, per se suggest the violation of a criminal law. There are two kinds of decision-making which are punishable under the Prevention of Corruption Act, 1988 (as it stood when the Rafale Deal was entered into) — a decision motivated by personal gain and a decision motivated by gain to another with no public interest.

“Public interest” is a tough thing to define in regular circumstances, but hardest perhaps when it comes to matters of defence. It’s one thing for two reasonable people to disagree on what constitutes public interest — it is completely another for the court to say that its definition of public interest should prevail over the government’s in this field. To argue that there was absolutely no element of public interest in the Rafale deal and it was only entered into for the benefit of Reliance would not be borne out by the facts. That Reliance might benefit out of this is not the sole basis for initiating criminal prosecution. The threshold for the petitioners to prove was much higher and it has not been established.

For similar reasons, the court was also not inclined to set aside the deal itself. Sticking strictly to the letter of the law, the court found that there was nothing per se illegal, irrational or procedurally improper about the Rafale deal. Underpinning this is perhaps a keen awareness that the Supreme Court realises that the public will judge it with a “you broke it, you bought it” yardstick. It is not as if the court can guarantee a better fighter jet or a better price by striking down this deal. Unstated in this judgement is the trauma from the blame that the court got for economic disruption that resulted from the cancellation of 2G licenses and coal allocations in the recent past. Perhaps some of the blame was less than justified but the court seems reluctant to go searching for dragons to slay in this case.

Does that mean that the Rafale deal has gotten a “clean chit” from the Supreme Court? Hardly.

It is possible to make bad decisions without them being illegal or unconstitutional. A decision to raise taxes with retrospective effect might be a bad one without also being illegal or unconstitutional. Demonetisation may have caused widespread economic devastation and misery, but it was not per se illegal or unconstitutional. I could multiply examples to the same effect but the point remains that a bad decision need not be an illegal one or unconstitutional one as well.

There’s a good case to be made out that the terms of the Rafale Deal are bad — whether in terms of pricing, or in terms of strategic needs, or simply in terms of Reliance Defence’s capacity to deliver. None of these arguments are rendered invalid because of the court’s judgement.

One only wishes that the court had found this admirable restraint more often, in the right cases.

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Updated Date: Dec 14, 2018 18:04 PM

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