The Rafale judgment is fundamentally flawed

Justice Markandey Katju

Justice Markandey Katju –

 

I find the Supreme Court verdict on the Rafale deal fundamentally flawed. Let me explain.

A fundamental principle in modern democracies is that it is the people who are supreme, and the people act through their representative bodies, Parliament and (where there is a federal Constitution) the state legislatures.

Early in the 17th century, it was realized in England that the real power is with those who have the power over the public purse. There was a tussle in England as to who will control the purse, the King or Parliament. This issue was decided after historical struggles in the 17th century, including a civil war and the Glorious Revolution of 1688, that it was Parliament, representing the people, which has the power.

When our Constitution was framed, our Founding Fathers borrowed from the British (and American) historical experience, and laid down in Articles 112 to 117 in meticulous detail the procedure for raising public revenue and making the public expenditure. Not a rupee can be spent by the Govt unless Parliament has approved it in the manner laid down in those provisions.

The observation in paragraph 25 of the Supreme Court judgment in the Rafale case goes against the above principle, and hence it goes against a cardinal principle of democracy.

The bench presided over by Chief Justice of India (CJI) Ranjan Gogoi says in para 25 that the pricing details are sensitive and so cannot be disclosed to Parliament. This view is totally unconstitutional. The people of India, through their representatives in Parliament, are entitled to know how public money is being spent, whether the matter is ‘sensitive’ or not, otherwise, any matter can be hushed up by simply declaring it sensitive.

The bench said that the pricing details have been shared with the Comptroller General of India, who reported it to the Public Accounts Committee of Parliament. But the Chairman of the PAC, Mallikarjun Kharge, has said that no such report from the CAG was received by the PAC. It seems that the observation in para 25 of the judgment is ipse dixit and not factually correct.

With due respect to the Supreme Court, it has not followed the clear Constitutional scheme regarding how public expenditure is to be incurred. All details of expenditure regarding the Rafale deal, particularly the pricing details, had to be submitted to the PAC, as that is the body appointed by Parliament to look into public expenditures, and in turn, the PAC had to submit it to the full Parliament with its recommendations. Only after Parliament approves it can the expenditure be made.

The Supreme Court judgment needs to be immediately reviewed.

 

[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own]

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