The Supreme Court and the Attorney General should have avoided action during elections

Mail Today
May 4, 2009


POOR SENSE OF TIMING

by Rajeev Dhavan

The Supreme Court and the Attorney General should have avoided action during elections

SHOULD the Supreme Court’s order for investigating Modi’s role in the 2002 riots have been made during the election? Was the Attorney’s General’s opinion lifting the Red Corner Notice on Quattrochi necessary at this point in time? What do we make of the order to monitor proceedings connected with the Gujarat riots but not transfer the cases out of the State? All these have provided fodder for electioneering.

Some think the decisions were ill timed. The BJP has made insinuations. They see invisible hands and willing minds lurking behind these decisions. Secularists welcome the Gujarat decisions. Detractors think the Congress is its own worst enemy and has engineered this.

The Election Commission’s Code of Conduct does not apply to the judiciary.

Serious problems would arise if it did. In effect, the Election Commission would become the virtual dictator of India — gagging and controlling all government decision making, political behaviour and political activity while elections are on.

Judges and the judiciary are outside the purview of the Election Commission.

In return, since Ponnuaswamy’s case in 1952, judges have imposed a limitation that they will not interfere with the electoral process once it has begun. Constitutionally, the Supreme Court is supreme; and infallible only because it is supreme. If the Supreme Court does not show self restraint it would destroy the Constitution and all which it inherits.

Questionable

Consider the decision of the Supreme Court to investigate Modi’s role in the Gujarat riots. This is an important question for Indian governance; and those at the receiving end of Modi’s ‘ modi- fied’ justice. Some say, the Nanavati Commission came to doubtful conclusions — even more so than the Justice Wadhwa Commission’s on the Staines murder in Orissa. For Modi’s supporters the Nanavati Commission was one necessary final word, because Justice Banerjee had absolved Muslim sabotage in Godhra. History demands a clear answer. But, was this the right time to deliver the blow? When I was arguing a contempt case in the Supreme Court against Prime Minister Narasimha Rao over the destruction of the Babri Masjid, Justice Barucha adjourned the matter because elections were in the offing.

In the Babri Masjid case, Justice Barucha wrote the minority judgment. But, he rightly felt that no heavens would fall if the court’s decision did not become the fulcrum around which electoral issues would surface with angst. The judiciary’s show must go on. Elections or no elections. But, timing is important.

In the present case, the Supreme Court, on April 27th 2009, asked the Special Investigation Team ( SIT) to investigate the role of Modi and 64 others in the Gujarat riots. Gujarat was slated to vote for the parliamentary elections on 30th April. The petition on which the Supreme Court gave its order was filed by slain Congressman Ehsaan Jaffery’s wife, who wanted to cook Modi’s goose in a judicial cauldron. Modi’s role merits investigation. But, suspicion was ripe.

How was the timing so perfect? The court, in all its wisdom, should have been more forebearing. Courts cannot stop working during an election, but they do not stoke fires either. This is a balance that has to be struck.

Then suddenly the Red Corner Notice on Quattrochi was lifted. The notice may have expired. But now the credit or blame was emphatically passed on to Attorney General Milon Banerjee — friend of Law Minister Bhardwaj and the royal family in Janpath.

Arguably all this was really no more than routine. The administration cannot stop. But it cannot be overtly or covertly political. The Bofors deal had been unsatisfactorily cleared by a Parliamentary Committee in 1987.

Quattrochi was allegedly a middle man. His extradition proceedings were hopelessly bungled. Now, the man is off international surveillance.

The Attorney General is a constitutional functionary, advisor to the government with the right to address Parliament. He is not a hatchet man for the government. The tone for the Attorney General’s office was set by M. C. Setalvad — and, indeed, many state Advocate Generals. The Emergency ( 1975- 77) changed many offices and institutions. In recent years K. Parasaran steered the Congress government through the Bofors and Bhopal Gas tragedy crises. He was as resourceful as Attorney General G. Ramaswamy was artful.

Riots

Soli Sorabji, a distinguished lawyer, who was Attorney General in the V. P. Singh government, returned as Attorney General for the BJP- led coalition.

In one anxious moment, he appeared in the Babri Masjid case as virtually presenting the BJP’s case on the Masjid — the opposite of what he argued in private capacity. A simple mistake can change people’s perception of a person or institution.

On May 1 2009, the Supreme Court dealt with an NHRC case where the latter had recommended the transfer of certain riot cases outside Gujarat. This case has been hanging fire for quite some time. Justice Pasayat, who had brought the Zaheera case on track earlier, was about to retire in a few days. He took the decision not to transfer the case out of the state. Instead, they were to be fast- tracked. Was this enough? Was this ever enough? In the past politically sensitive cases concerning Jayalalitha were transferred out. The corruption cases went out of Tamil Nadu. The Shankaracharya case was transferred to Pondicherry. The Zahira case was also transferred.

This means that the transferee state’s prosecutors took over under the overall remit of the High Court within whose jurisdiction the case was transferred. But the impact of Justice Pasayat’s order is quite subtle.

It makes a broad distinction between the judiciary of Gujarat ( which is to be trusted) and the Modi administration ( which is not to be ).

Anomaly

Six fast track courts have been set up in Ahmedabad and elsewhere.

Totally at variance with the order in the Hawala case ( 1997) which is for a ‘ hands off’ approach when the trial has begun, here the SIT’s control is ‘ hands on’. The SIT can prosecute, can change prosecutors or ask the Advocate General to appoint additional prosecutors, move to cancel bail etc. It can file chargesheets — as it has done in two cases. Threemonthly reports will go to the Supreme Court. The SIT team consisting of Raghavan ( former CBI director), CD Sathpathy ( former DIG, UP) and three Gujarat officers ( Geeta Johri, S. Jha and A. Bhatia), have become a ‘ super power’. SIT’s reports to the Supreme Court will be in sealed covers. No doubt the apex court will take over — supplanting the existing statute and High Court supervision, contrary to the Supreme Court’s own ruling in Bar Association case that the Supreme Court cannot override the law.

For those who want justice in Gujarat after seven years, was this the only way to make it happen? Legally improper, but designed to control Modi’s government with its interference and failures. Is the malady just in Gujarat? Or is this political and communal disease spread widely in the BJP states? Is the Supreme Court telling the BJP states not to communalise criminal justice? Will this stretch to other states and other situations? Continuous supervision may not work.

So much will depend on which bench will replace Justice Pasayat’s.

It would have been easier to transfer the matter to another state whose prosecutors and High Court would have taken over. Now a new message is out. Its limits will emerge in the future.

The Supreme Court must not only strive to be correct but also wise.

Creating electoral events does not augur wisdom. Nor does a hasty solution inspire confidence.

The writer is a Supreme Court lawyer