Monthly Review: December 2018

There were significant developments in the Supreme Court in December, despite the fact that the Court was only open for the first two weeks of the month. The Court delivered its judgment in the Rafale Fighter Jet Deal. It also heard the CBI case and commenced arguments in the Gujarat Encounters case.

Hearings:

1. CBI Dispute: The Court concluded hearings in the case challenging the ouster of Alok Verma. The Central Government had divested him of his powers as the Director of the Central Bureau of Investigation (CBI). During the hearings, the petitioners questioned whether the Central Government had the authority to suspend the CBI Director, without the approval of the Selection Committee. The Selection Committee has the power to appoint the CBI Director. It consists of the PM, the CM and the leader of the opposition.

The Court heard the case extensively on the 5th and 6th. Attorney General KK Venugopal Solicitor General Tushar Mehta argued on behalf of the Central Government and the Central Vigilance Commission (CVC) respectively. Further, the petitioners responded to the AG and ASG in their rejoinder arguments.

2. Gujarat Police Encounters: The Supreme Court is monitoring 22 alleged “fake encounters” by the Gujarat Police between 2002 and 2006. The Cour formed a Committee to monitor the investigation in in 2012. The Committee was headed by Retired Supreme Court Justice HS Bedi and submitted its final report in a sealed cover in March 2018. The State of Gujarat must file a response to the final report.

On December 12th, the State of Gujarat  contested that Just Bedi had composed the final report without consulting the other members of the Committee. The Court will hear the case next on January 9th 2019, by which time Justice Bedi must respond.

3. Judicial Vacancies in the Lower Courts: On October 22nd 2018, a two-judge Bench of the Supreme Court took suo motu cognisance of the high number of judicial vacancies in various States. The Bench led by CJI Gogoi appointed Shyam Divan, KV Vishwanathan, Vijay Hansaria and Gaurav Agrawal as amici curiae.

The Court expressed dissatisfaction with the submissions made by West Bengal and the National Capital Territory of Delhi. The Court criticised the States for failing to build judicial infrastructure and hire staff.

In addition, the court also heard the submissions made by the States of Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka, and Kerala. In January 2018, it evaluated the States of Madhya Pradesh, Madras, Odisha, Patna, Punjab and Haryana.

Judgment:

1. Rafale Fighter Jet Deal: On December 14th 2018, the Supreme Court declined the plea seeking a court-monitored investigation of the Government’s purchase of 36 Dassault Rafale fighter jets. CJI Gogoi, speaking on behalf of the Bench observed that the Court’s scope of judicial review is severely restricted as the deal is a defence procurement contract. He stated that a court monitored investigation could harm India’s national security and sovereignty.

CJI Gogoi said that the Government had undertaken sufficient negotiations with the French Government before entering into a contract for buying the 36 French jets. Further, he said that there was nothing wrong with Reliance Defence being Dassault Aviation’s offset partner. He said that it is ultimately Dassault Aviation’s prerogative to choose its offset partner. Finally, on the question of pricing, he accepted the Government’s argument that the new deal is commercially advantageous.

Other news:

1. On December 30th, Justice Madan Lokur retired. He developed a reputation for presiding over social justice matters and his Bench earned the nickname “social justice Bench”. In recent times, he is most known for being one of the Supreme Court Justices, who publicly criticised then CJI Dipak Misra.

Justice Madan Lokur authored 159 judgments as Supreme Court Justice and was cited in 117 judgments.