What is the issue?

• The SC’s judgment refusing to set up an investigation team to look into the Rafale deal has an air of haste and incompleteness about it.

• It indicates that SC can exercise judicial activism only to the extent that the government of the day permits it.

What are the concerns with the hearings?

• First, the Court said that it did not want to look into the pricing aspect of the matter, then changed its mind and asked the government to provide details of pricing in a ?sealed cover.?

• Second, when submitting pricing details only in such ?sealed cover?, with no opportunity to the petitioners to rebut facts.

• Third, even as it keeps insisting that questions of defence acquisition are matters beyond its technical competence, the Court cannot help but make passing remarks on the necessity of the Dassault Rafale fighters for the Indian Air Force.

• This seems to be based on an unstructured and somewhat haphazard ?interaction? with air force officers during the hearing.

• The end result is that far from settling any controversy or aiding any truth from coming out into the public domain, the Court has only kept most questions about the deal unsettled, and raised more on its own institutional capacity to adjudicate such disputes.

• The office of the CAG, whose draft reports formed the basis for some of the Court’s interventions is rarely seen or heard of these days.

• The CBI, which the Court depended on to carry out investigations, is in complete and utter disarray, with the Central Vigilance Commission, supposed to supervise the CBI, having stood idly by until it was too late.

• Without other agencies working as intended under law, any SC intervention in the Rafale deal would have been, at best, an ill-informed stab in the dark.

• The intriguing part of the recent judgment is that it rules out any foul intention in the deal.

• The Court seemed to be in a great hurry to give the judgment relying only on the information given to it by the government.

• Although it was the obligation of the government to give all the necessary information required for a complete judgment, that seems to have not happened.

• In such a situation, the Court should have asked for such necessary information.

• It gives us the sense that a more complete judgment is awaited in this case.

What should be done?

• Even with the cooperation of these agencies, there is no guarantee that the Court’s intervention necessarily serves the purposes of justice or  larger constitutional goals. e.g: Acquittal in 2G spectrum case

• Thus, at some point, the SC will have to carry out procedurally more adequate and balanced appraisal of its role in matters such as the Rafale deal.