Opposition has already approached the CVC and the CAG on Rafale deal

If you sniggered at the Pakistan Supreme Court’s fund-raising drive for construction of the Diamer-Bhasha and Mohmand dams and their chief justice Mian Saqib Nisar’s intervention in the issue, wait till you hear what our Supreme Court is doing about the Rafale deal.

There are no constitutional or even legal questions for the court to settle, but it is simply sniffing secret envelopes to see if it can smell a scam. In doing so, the court is undermining a whole bunch of institutions that are in place to tackle this.

First, Manohar Lal Sharma, an advocate, files a public interest litigation naming Prime Minister Narendra Modi as the first respondent and seeks the court’s intervention in the Rs 59,000-crore Rafale defence deal.

On 5 September, a three-judge bench headed by then-Chief Justice Dipak Misra agrees to hear the case after Sharma seeks an “urgent hearing”.

On 18 September, the case is listed before a bench led by Justice Ranjan Gogoi, usually full of disdain for PILs and especially those seeking urgent hearings, which accepts the plea. When Gogoi becomes the CJI, the case moves with him from Court 2 to Court 1. Sharma, an advocate who specialises in filing frivolous PILs, is granted permission to argue. But, more on him later.

The language of the court’s order seems to be an announcement that a new emperor is in town who likes to weigh in on everything at any time.

This is not about the Supreme Court directing the Centre to file documents on record. Without formally issuing a notice, it is instead telling the government that “it would like to be apprised of details” that the public is unaware of in sealed envelopes to simply “satisfy itself”.

The following extracts of the apex court’s orders show why its intervention is so troubling.

“We make it clear that we are not issuing any notice at this stage on either of the writ petitions filed under Article 32 of the Constitution. However, we would like to be apprised by the Government of India of the details of the steps in the decision-making process leading to the award of the order for the defence equipment in question i.e. Rafale Jet-Fighters (36 in number. We also make it clear that while requiring the Government of India to act in the above terms, we have not taken into account any of the averments made in the writ petitions which appear to be inadequate and deficient. Our above order is only for the purpose of satisfying ourselves in the matter,” the court said on the first hearing itself on 10 October.

On 31 October, during the second hearing, the court said it “would also like to be apprised of the details with regard to the pricing/cost, particularly, advantage thereof, if any, which again will be submitted to the court in a sealed cover”.

Distrust of Institutions

In the garb of judicial review, the Supreme Court has usurped the role of all other institutions serving as checks and balances in a democracy.

If there are graft allegations against a public servant, the statutory body Chief Vigilance Commission will look into it.

The Comptroller and Auditor General of India, a constitutional body like the Supreme Court, will audit every penny spent by the government. The audit reports are then scrutinised by the Public Accounts Committee (PAC), which is headed by the leader of the opposition. The PAC’s role is to examine the audit report for any loss of public money through corruption or inefficiency.

The opposition has already approached both the CVC and the CAG, but the court cannot do the job of these two institutions before they can have a chance at it. This dangerous distrust of every other institution apart from itself prompted the court to cancel all 2G spectrum licences in 2012.

Whose Interest Is It Anyway? 

Sharma, as an advocate, gained notoriety after he represented the accused in the 2012 Delhi gang-rape case. His fame extended a little more than five minutes as everyone loved to hate him for his derogatory and sexist remarks against women.

Since then, he has filed a PIL on every controversial headline. The court dismisses a majority of his petitions and has even fined him multiple times for filing “frivolous petitions”. Yet the Supreme Court continues to engage him and accept his petitions despite frequently calling out other PIL petitioners.

The court should have never entertained Sharma’s plea but former union ministers Arun Shourie and Yashwant Sinha also filing similar petitions on the Rafale deal have added heft to the original PIL.

What Is The Court Doing?

Between three judges and over two dozen lawyers, no one seems to know what the outcome of this PIL will be. There are two broad, oversimplified outcomes – either the Modi government gets a clean chit or the court indeed finds some mischief.

If the court finds prima facie evidence of wrongdoing, will it form an SIT? Would the Central Bureau of Investigation whose chief Alok Verma is currently fighting a battle for his survival after he allegedly began looking into the Rafale deal head the SIT?

Or if the court gives the Modi government a clean chit, which seems highly likely, would that not close all doors if allegations come into light in future since the deal will be operational between 2019-2022?

No matter which situation plays out, the Supreme Court would have tragically trapped the Indian public between the devil and the deep blue sea.

The case will be heard again on 14 November.