When court verdicts impact poll outcomes

The Judiciary has perforce to deal with cases involving political leaders. The verdicts in these cases invariably impact electoral politics, affecting the prospects of individuals and/or political parties. This cannot be wished away in these times of increasing allegations of corruption and malpractices.

In public interest, the cases must be taken to their logical conclusion at the earliest, but procedural delays, lengthy processes and obstructions by the parties all lead to inordinate delays in the disposal of cases.

Assam, Kerala, Tamil Nadu, West Bengal and Puducherry are to have the general elections to the Legislative Assemblies in April - May 2016. The election declarations in respect of these States/UT came on the 1st of March on the two previous occasions in 2006 and 2011.

The Election Commission's formal code of conduct comes into force with effect from the date of the declaration; the Governments are then under close scrutiny as there is an embargo on any action that would influence the electorate. In a democratic system, the citizen's most powerful tool is his vote, and this has ideally to be exercised with free will.

There should be no administrative action that could buy the votes for the persons in power. The Judiciary is of course not part of the electoral process and the general approach has been to discourage election-related litigation before the elections. But there are matters which are not directly election-related, but would have an influence on the elections.

It is in this context that the influence of judicial decisions on the electorate needs to be discussed. The Kerala electoral scene is extremely different from that in the rest of the country. Here the victory margins are generally low, and in the last forty years, power has alternated between the Congress-led front and the CPM- led front. The BJP has now grown, and could be a decisive factor in some constituencies.

The Kerala electorate is generally considered mature, and is not easily influenced by election-eve manipulations. Even in this context, the decision of the Kerala High Court to hear the State Government's petition in the SNC Lavalin case in the latter half of February creates some discomfort in the minds of impartial observers.

The CPM's undeclared Chief Ministerial candidate, Pinarayi Vijayan, who was the Electricity Minister at the time of the SNC Lavlin contract, was discharged from the list of accused, by the CBI Special Court in October 2013. The CBI has filed a revision petition before the High Court, and now, with elections approaching, the State Government has approached the High Court for an immediate hearing of the case.

It is this case that a Single Bench of the High Court will hear and pass orders in end- February or early March. This case has been pending for more than two years and it is obvious even to any layman that the timing of the State Government's manipulative move is aimed at damaging the reputation of the leader of the opposing camp.

The attempt to use the Judiciary for such an exercise is unfortunate, whatever be the merits of the case. During the hearing, the Court will also be called upon to consider the legal issue as to whether the State Government is entitled to file such a petition in a case investigated by the CBI, in the context of the Supreme Court decisions in Lalu Prasad Yadav & Anr vs State of Bihar & Anr (2010) and National Commission for Women vs State of Delhi & Anr (2010). In the case now before the High Court, the decision could be either to allow the petition, making Pinarayi Vijayan an accused in the case, or to dismiss it, confirming his innocence. Both would have some impact, although as mentioned earlier, the Kerala electorate is mature enough to make their own assessment about the personal integrity of Pinarayi Vijayan. Still, the question remains as to whether the judiciary should be a party to this.

Kerala had a sensational case in 2011 also - the Supreme Court judgment in the R Balakrishna Pillai case came on 10th February, just 18 days before the declaration of elections. The Supreme Court overturned a High Court judgment exonerating Balakrishna Pillai and convicted him. The appeal had been filed by an individual, V. S. Achuthanandan, and not by the State of which he was Chief Minister from May 2006 to May 2011.

The question is certainly not on the merits of the case, but the timing. The conviction of a senior political leader who had contested all the Kerala Assembly elections from 1960 just before the 2011 polls was certainly a relevant topic for the election campaigns, although the conviction was on charges of criminal conspiracy and not bribery or amassment of wealth.

Kerala is now debating two scams - the Bar licence scam and the Solar scam. In the former, there have been several court cases at the Vigilance Court level and in the High Court. Some of the orders and observations do not reflect judicial detachment - while the intentions are probably not questionable, the expressions are.

In the Solar scam, it is the work of the Judicial Inquiry Commission that is attracting headlines; stories of sex and sleaze provide masala to the media, but hopefully the big social issues would get addressed when the Commission finalises the report. In both these scams, it is well known that huge money was collected; and it is intriguing why the investigators are not able to establish the money trails. Judicial supervision is inevitable, but the discomfort, again, is about the timing.

The Judiciary is the ultimate protector of the rights of the citizens, and it is imperative that the people's perceptions about the high degrees of fairness, credibility and adherence to law are not diluted. Many of the successful politicians are shrewd manipulators, and power gives them opportunities to manoeuvre; judicial forums have to guard themselves against such attempts.

Of course, decisions on the timings of cases are only partly judicial; they are mostly administrative. It would therefore be appropriate if the Courts have a self-imposed code of conduct regarding the handling of politically sensitive cases on the eve of elections.

(K Mohandas is a former civil servant, who retired as Secretary to the Government of India. He is the Coordinator of a new online initiativegoodgovernancegroup.in)