It had to happen sooner rather than later. After educating us on what to eat, read, wear, worship, sing, who to marry and other assorted aspects of culture, it is entirely appropriate that the BJP should now want to educate the Supreme Court on how to interpret and understand plain English. The reference is to the difference between the words “is” and “has been” in the sealed cover report on Rafael presented by the govt. to the court. It was largely on the basis of this report that the court issued the “clean chit” to the govt. on the pricing and procedural aspects of the deal. And now the govt. wants the court to correct its wrong interpretation of these words, implying that some poor Deputy Secretary or Under Secretary has a better grasp of the Queen’s English than three wise judges. Here is what the govt stated in the sealed cover report:
“The govt. has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain.” [ Bold fonts by the author].
The Supreme Court, quite inexplicably , read the word “is” to mean “has been” while the govt. now says that it connotes “will be”! The whole thing is quite baffling. In the first place, the govt’s drafting appears to be deliberately dodgy in order to convey precisely the meaning which the court derived viz. that the CAG has examined the pricing, as have the PAC and Parliament and that therefore there is no need for the court to intervene. The clear intention is to mislead the court. Why else would the govt. not clearly state the factual position: that it has given the pricing details to the CAG, its report is not yet ready and when submitted would be put up before Parliament and the PAC, in that order? Its ambiguous choice of words was clearly deliberate. The averment that only a redacted version is placed before Parliament is also incorrect, because the govt. cannot edit a CAG report- this too is misleading. Equally surprising, however, is the court’s interpretation. How could it interpret “is” to mean “has been”? Even a proxy Vyapam candidate would know that the two formulations convey entirely different meanings. It is possible, but difficult, to ascribe the mistake to a weak grasp of the English language by judges who would by now have written millions of words in their careers. Is it possible that the court was now keen to dispose of the matter quickly, having realised that it was way beyond its depth, and that therefore a certain casualness had crept into its approach? Or was it that it did not want to take on the govt. in this make or break matter, decided to extricate itself from the rapidly escalating political mess, and therefore adopted the meaning and interpretation which served this objective?
Whatever the explanation, it makes for a very confusing, contradictory and questionable order, especially in the light of the less than transparent processes followed : sealed covers, reports in place of affidavits, examining defense officers without cross examination, etc. It also boggles the mind why the govt. was given a clean chit without going into substantive issues of pricing, choice of offset partner, reasons for cancelling the earlier deal with Dassault, failure to invite fresh tenders, etc. All these issues were summarily disposed of by either accepting the govt’s word at face value or invoking Article 32 to deny the court jurisdiction in the matter. There are many factual errors in the order also, which have been pointed by many legal experts: confusing Mr. Mukesh Ambani’s company with that of Anil Ambani’s offset firm, terming gross violations of the DPP as “minor variations”, stating that the withdrawal of the earlier RFP was initiated in March 2015 when there is no evidence to support this, but plenty to disprove it. In Arun Shourie’s words “by giving the official assertions a verisimilitude of legitimacy” the judgment has curtailed the people’s right to know what actually transpired in the shadows. Would it not have been more circumspect and legally correct to simply leave it for the CAG/Parliament and the PAC to examine the matter and take a view on it? Surely the court could not have been unaware of the huge political implications of the case, and the consequences of any perception that it was going soft on the government?
And the expected fall-out has begun. Mr. Jaitley and the Raksha Mantri have lost no time in proclaiming that, now that the court has absolved the govt. of any culpability in the matter and that all is now hunky dory, there is no need for a JPC: a Parliamentary Committee can neither contradict the Supreme Court nor go beyond what the court has decided. In fact, they claim, even the CAG’s report has now become redundant and superfluous! The court has unwittingly handed the govt. the perfect alibi to stall any further investigation. All democratic and transparent safeguards built into the system to act as a counter check to the executive in such matters have been demolished by this one judicial order. The court should have not taken up the matter at all, but once it decided to do so it should have gone to the root of the disputed issues and decided them cogently and transparently, or referred it to an SIT for further investigation, which is all that the petitioners wanted in the first place, without pronouncing on the merits of the case. It is a contradiction for it to claim that it has no jurisdiction under Article 32, but still accept only the govt’s averments and declare that it finds nothing wrong.
This does not bode well for the future: for if the court itself will not look into the matter for lack of jurisdiction, and the CAG or Parliament or the PAC cannot do so because the court finds no occasion to doubt the govt’s assertions and accepts them at face value, then the govt. (either the present one or a future one) has been given a blank cheque for all kinds of malfeasance. This surely could never have been the intention of the court. This order needs to be revisited. Immediately.