Abstract

India is the second-largest defense importer, so it's imperative for the government to enter into agreements with different businesses or countries. With that, it is natural to lead to an increase in disputes arising out of those contracts and needs the judiciary to interfere and scrutinize the contract, just like in the case of Rafael deal, an Inter-Governmental Agreement to purchase 36 Raffael Jets in a fly-away from France. Soon enough, it created a series of political Ripples around the country, with politicians making allegations like price escalation, infirmity in the decision-making process, and favoritism to a particular tender started to arise. It finally reached the gates of the apex court, which after hearing, both parties dismissed the petitions. It held that the nature of tender in question is sensitive. Defense tender is not a construction of roads or bridges but regarding the procurement of fighter jets required for the nation’s military strength. It requires different considerations not in the court’s expertise to scrutinize. The government is considered the guardian of the state’s finance and is trusted to protect it. For that constitution grants great flexibility to use its discretion to enter into a contract with any individual and to choose the terms and conditions. Price cannot be the sole criteria, and the considerations can vary depending upon the nature of the contract. Article 226, 227, and 32 of the constitution grants the judiciary power to use its judicial mind and review the contracts within the walls of separation of powers. They can’t check the terms and conditions of the contract but can test its validity on the anvil of illegality, procedural impropriety, or irrationality. The court is primarily concerned with the decision-making process or how the government made the decision and if there is a violation of principles laid down in Article 14 of the Constitution. Any decisions taken must be in the public interest, and for the public good, as in some cases, it can become counter-productive by causing injury to the public in general.

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