'All roads lead to SC' hurts parliamentary democracy

Last Updated 23 December 2018, 17:53 IST

The Supreme Court verdict dismissing all the petitions seeking an independent court-monitored investigation into the Rafale fighter jet deal has raised many more questions than answers. Every stakeholder is citing different paras of the verdict to buttress their own arguments.

The bench led by Chief Justice Ranjan Gogoi observed that there is no evidence of wrongdoing in the government’s decision-making process or in the choice of Reliance Infrastructure Ltd as the Indian partner and refused to go into pricing details. The bench did not find any substantive reason for making judicial intervention in the sensitive issue of purchase of 36 defence aircraft by the Indian government.

However, the court’s observation in para 25 which stated that the government has already shared the pricing details with the CAG, the report of which is examined by the Public Accounts Committee (PAC) and only a redacted version of the report is placed before parliament and in public domain, created chaos in political circles. The union government instantly submitted an explanation in the court that its submission to the effect that the report of the CAG “is” examined by the PAC, was a description of the procedure which is followed in the normal course, in regard to the reports of the CAG.

The very fact that the present tense “is” is used would mean that the reference is to the procedure which will be followed as and when the CAG report is ready. The reference to the word ‘is’ has been replaced with the words ‘has been’ in the Supreme Court verdict resulting in its view that “the report of the CAG has been examined by the Public Accounts Committee.” Similarly, the statement that only a redacted version of the report “is” placed before parliament is referred to in the judgement as “only a redacted portion of the report was placed before parliament, and is in public domain”.

Despite this altered affidavit by the union government, nothing substantial is going to happen as the ratio of the verdict seems to be clear. The bench has made it clear that the scrutiny of the challenges will have to be made considering the precincts of national security, the subject-matter being critical to sovereignty of the nation. It is definitely not the court’s job to compare the price details, especially in sensitive matters like this.

Country can’t be underprepared

While on the choice of the Indian Offset Partner (IOP), the court did not find any substantial material exhibiting commercial favouritism to any party by the Indian government because the selection of IOP was not within the domain of the Indian government. The bench also made it clear that the court can neither question the wisdom of the government in purchasing 36 aircraft in place of 126, nor can it compel the government to go in for purchase of 126 aircraft. The chief justice rather reinforced the claim that country cannot afford to be underprepared when our opponents have already acquired fifth generation aircraft.

The suitability of the Rafale fighter jets and its utility to the Indian Air Force was not questioned even by the petitioners. What the petitioners suspected is the decision-making process and the price of the fighter jet at which it was proposed to be purchased. The whole politico-legal discourse raises, in my considered opinion, two important and disturbing questions concerning our institutions; first, the ever diminishing role of the Public Accounts Committee (PAC) in our parliamentary system; and second: dragging all such policy decisions of the government to the Supreme Court will politicise our highest appellate court.

The committee system was devised in a parliamentary system as an effective inter-organ control device that keeps the executive accountable to parliament. History shows that parliamentary committees have been very vital institutions in most of the eminent democracies such as the US, United Kingdom, Canada, Australia, etc. Over the years, the committee system has come to occupy importance in the field of governance. However, the PAC has been deliberately reduced to a toothless tiger by successive governments.

The politician in power together with the compliant bureaucrat have not only advanced a vested interest for secrecy and evading accountability but perfected the art of treating parliamentary committees as useless bodies. Unfortunately, parliamentary and pre-legislative exercises spread over several years had hardly done anything radical to remove this vested illicit interest.

The non-functioning of this inter-organ control device increases the workload of the Supreme Court. In the absence of a precise judicial policy on political questions, the different Supreme Court benches in their selective and subjective wisdom choose whether or not to intervene in these matters. This extended horizon of judicial review was originally seen with reverence but excessive use of it is now triggering politicisation of the Supreme Court.

Instead of dragging all such matters to the Supreme Court, we must try to revive and fortify our committee system, which is supposed to serve as the key element for ensuring executive accountability. The very fact that there is someone who will examine what has been done by the government is an effective check on the laxity or negligence of the executive. A proper scrutiny will not only lead to general efficiency of the administration but would also serve as a guide for both future approximations and policies.

We need to devise a strong legal mechanism whereby it is mandatory for all the governments in power to send all such foreign commercial deals to the PAC. It should not be left at the mercy of the Speaker, who invariably functions on the instructions of the government. This would go a long way in attaining accountability of government and ensuring a virtuous parliamentary democracy.

(The writer is Registrar (I/C), National Law University Odisha)

(Published 23 December 2018, 17:45 IST)

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