Legal implications of Rafale judgment: You cross the Rubicon at your own risk

Alangad Raghunath

The Supreme Court’s recent judgment on the issues relating to the procurement of 36 Rafale fighter jets for the Indian Air Force is based on a scrutiny of three broad areas, namely on (i) decision making (ii) difference in pricing and (iii) choice of the Indian Offset Partner (IOP). On all the three issues mentioned above, the Supreme Court held against the writ petitioners.

On the aspect of the ‘decision making process’ in the Rafale deal, the court held, at para 22 of the judgment that there is no occasion to doubt the process and also that there is a financial advantage to the nation. At a broad level, the processes have been followed, the court had stated. On pricing, a reference to the court’s statement as per para 26 indicates that it is not the court’s job to compare pricing details in matters like this. Most notably, para 33 rules out commercial favoritism to any party by the government. Ultimately, the Supreme Court closed the writ petitions with a wry observation that perception of individuals cannot be the basis of a “fishing and roving inquiry” by the Court, especially in such matters.

The Supreme Court also rightly delineated the contours of judicial scrutiny of defence deals by the Government, which have the nation’s defence preparedness and national security issues, at stake. From a legal point of view, it is pertinent to note that the apex court emphasised at several places in the judgment that it is not scrutinizing an ordinary tender for construction of roads, bridges etc but instead a defence tender for procurement of aircraft.

At para 9 of the judgment, the Court observed:

“The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of procurement itself.”

At para 11 of the judgment, the Supreme Court again observed that there cannot be any uniform standard or depth of judicial review which could be understood as an across the board principle to apply to all cases of work or procurement of goods/materials. The Court held at para 11 as follows:

“The scrutiny of challenges before us, therefore, will have to be made keeping in mind the confines of national security,…..procurement being crucial to nation’s sovereignty.”

The Court also held they cannot be seen to sit in judgment over the wisdom of deciding the number of aircraft purchased. The same yardstick was applied on the pricing issue. The Court held at para 26 that it is certainly not the job of the court to carry out a comparison of the pricing details in matters like the present and that the materials on pricing have to be kept in the confidential domain. Regarding the choice of the IOP, the Court also was circumspect in going in to technical details as it felt it is neither appropriate nor technically feasible to do so. (para 33).

Now, the prayer in the writ petition was to refer the matter to an SIT for investigation. For getting such an order in the affirmative, the Supreme Court would first have to sift all the evidences to come to a positive conclusion. For an adverse verdict too, the courts would have to do the same. The Supreme Court did exactly that and found no case having been made out.

Julius Caesar knew the consequences of ‘crossing the Rubicon’. In this case, the petitioners did cross the Rubicon and are supposed to know the consequences.

An important lesson which the Rafale judgment teaches all political activists who approach the court is significant and of utmost importance from a legal viewpoint: Use the judiciary to further your political agenda at your own peril.

The Rafale judgment lays bare the risks of using the judiciary to carry forward one’s political agenda. Like Julius Caesar, you ‘cross the Rubicon’ at your own risk. The moment the writ petitions were filed, the Rubicon was effectively crossed.

What the Rafale judgment also teaches is: Don’t expect the judiciary to come to your aid to strengthen political allegations. Approach the courts only if you have solid incriminating facts. Otherwise, you run the risk of a judgment vindicating the stand of your political opponent.

(Alangad Raghunath is Advocate on Record, Supreme Court. Views expressed are the author’s own.)