Flawed approach

Court should not jump into every issue without discrimination

The Supreme Court and its judges are tying themselves in knots in ways that were entirely avoidable. Some judicial restraint is in order, with cases only being heard by the highest court when it is proper for it to do so. Thus, the court decided to hear a plaint on the Rafale aircraft acquisition deal and went into issues that should have been left to the Comptroller and Auditor General (CAG), and after that to Parliament. It complicated matters by then saying that it would not go into pricing and other issues, dismissed procedural lapses as minor, and passed judgment and gave the government a clean chit in a pre-emptive manner. Neither the report of the CAG on procuring Rafale aircraft nor the Parliamentary Accounts Committee (PAC) report on it has been completed. So in effect, the work that should have been done by the CAG has now been rendered virtually infructuous. What is one to make of any shortcomings that the CAG may point out, when the court has already determined that nothing was wrong?

Along the way, the court asked for information from the government in sealed covers — a practice it has resorted to in other cases as well. This is fundamentally contrary to the normal and accepted practice of judges hearing cases in open court. It has consequently said things in its judgment that fly in the face of the facts, by either correctly or incorrectly interpreting what was given to it in secret. There are contradictions, too, in the judgment. For example, it says “it is certainly not the job of the court to carry out a comparison of the pricing details in matters like the present”. This, however, does not square with what the judgment says later, “We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP (Request for Proposal) as well as under the IGA (Inter-Government Agreement)”. What is the rest of the country to make of such a defective judgement? The correct course of action now would be for the government or the court to release the whole or at least the relevant part of what was communicated in secret.

The handling of the Rafale plaint is of a piece with the court's handling of the Judge B H Loya case, where it took matters away from the high court that was hearing petitions, and then pre-empted the trial court by giving its verdict, and a clean chit, without a trial, thereby once again short-circuiting due judicial process. Separately, there is the disclosure by the recently retired Supreme Court judge, Kurien Joseph, that the current chief justice has taken to the practice of periodically meeting the prime minister to clear issues, possibly a reference to filling judicial vacancies but perhaps to other issues as well. Such unrecorded, unannounced and closed-door meetings between the head of the government and the head of the judiciary should raise eyebrows, since they carry with them the clear risk of matters being discussed that should be taken up only in court, or in the judges' colloquium. No red lines may in fact have been crossed, but there should be no action by the chief justice that carries with it the risk of, or creates an opportunity for, such action.