Court’s judgment on Rafale pleas could set precedent for defence deals

› it would be appropriate...to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement and to indicate whether such parameters are more constricted than what the jurisprudence of judicial scrutiny of award of tenders and contracts. RANJAN GOGOI, Chief Justice of India

NEWDELHI: Dismissing a bunch of petitions demanding a court monitored probe into the purchase of 36 Rafale jets by the Indian Air Force, the Supreme Court on Friday prescribed a cautionary approach for courts while dealing with government decisions relating to defence contracts.

Put otherwise, the Rafale judgement could set a precedent where the courts tread carefully when it comes to such cases.

A bench of Chief Justice of India Ranjan Gogoi, Justice SK Kaul and Justice K M Jospeh held that courts should desist from making in-depth examination of defence contracts and keep“in mind the confines of national security and the fact that the procurement is crucial to the nation’s sovereignty” while dealing with petitions challenging defence procurements.

Upholding the government decision on the purchase of Rafale jets the court said, “The tender is not for construction of roads, bridges, etc. It is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself. The triple ground on which such judicial scrutiny is permissible has been consistently held to be “illegality”, “irrationality” and “procedural impropriety”.

Writing the judgment, Justice Gogoi also says that government must be given more ‘leeway’ while deciding petitions challenging defence procurements.

Making out a case for limited judicial interference in defence matters, Justice Gogoi said,” Adequate Military strength and capability to discourage and withstand external aggression and to protect the sovereignty and integrity of India, undoubtedly, is a matter of utmost concern for the Nation. The empowerment of defence forces with adequate technology and material support is, therefore, a matter of vital importance. Keeping in view the above, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement and to indicate whether such parameters are more constricted than what the jurisprudence of judicial scrutiny of award of tenders and contracts.”

Elaborating further and distinguishing it from normal contracts and tenders, he added: “It is our considered opinion/view that the extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and 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 award of work or procurement of goods/material.”