Wednesday, March 07, 2007

Politics & Law : Is the separation real or desirable?

Time and again, the question whether courts can examine political issues had cropped up in many cases before the Supreme Court. The answer has been that the courts cannot refuse to hear a matter, just because it hinges on politics. And courts had gone into matters political, only to bring clarity, and make politics a more transparent field of activity. This was my initial response when I read Fali S.Nariman's article in Asian Age on March 4. As I am not sure whether the link will work, (as I did not find a specific link to the article on its website) I am pasting it for the benefit of readers. 'Fali', as he is called by his admirers, is unhappy about the timing of the Supreme Court's intervention in the Mulayam Singh's matter on the basis of a PIL filed by a Congress politician seeking directions to the CBI to investigate his disproportionate assets - especially because the U.P. elections are round the corner, and heavens will not fall if the Court had adjourned the case till after the elections. With great respect to Fali, however, I disagree. It is true that the case would not be decided before the elections. But is that a reason to reschedule the court's calendar just because it may have an impact on politics, or more specifically, the outcome of elections? Fali assumes that the Court's intervention would prejudice the voters, who would otherwise be voting for Mulayam. But I fail to understand why can't this case be a useful input to a voter's decision. Why should voters' choice be insulated from the progress of a case concerning a chief minister? Why should a PIL petitioner lose his right to proceed with the case, simply because he had contested as a Congress candidate in a previous election - if the PIL petition raised some substantive issues or had merits? An adjournment of the case, because elections were round the corner - or that the petitioner had some ulterior motives to prejudice the voters - would be clearly an exercise of judicial discretion on the basis of extraneous factors. And that would have also meant that politics and law are separate entities, and that the expectation that politics must be conducted on a strong legal foundation is unreasonable. Here I present the article, and invite comments:
Mulayam CBI decision is singularly ill-timed
By Fali S. Nariman
I am distressed and disturbed at the news of the Supreme Court directing a CBI inquiry against Mulayam Singh Yadav, a sitting chief minister, allegedly at the instance of a Congress Party sympathiser in a PIL — not because of the verdict, which may be correct in fact and in law, but because it is singularly ill-timed. It is not that judges are playing politics — they are not; but in a country governed by the rule of law, reasonable people ought never to be left under the impression that they are trying to. The UP Assembly elections were announced by the Election Commission on February 21 and this put paid to intense speculation, generated as a result of a Constitution Bench decision of the Supreme Court, about President’s rule being imposed in that state. Only days later we now get a judgment of a bench of two honourable judges (on March 1) that will — certainly, in the minds of politicians — influence the election result. The dust of electoral conflict must never be permitted to settle on the Supreme Court or on any of its fine justices.
As a lawyer I recall a precedent. Some years ago, when a contempt petition had been filed against Mr Narasimha Rao in respect of the Babri Masjid case, and the matter came up for hearing, after a while, before a bench presided over by Justice S.P. Bharucha, it was pointed out to the court that the case was motivated only in order to embarrass Mr Narasimha Rao at a time when elections were round the corner. It was also suggested that many years had elapsed, and therefore whether a contempt could be proceeded with or not raised serious questions of law and propriety. Petitioner’s counsel — my distinguished friend Rajeev Dhawan — told the judges that he was prepared to answer all legal questions immediately, and the court should deal with the case, but the presiding judge on the bench merely said that "in the light of all the circumstances" (a beautifully evasive phrase frequently used by courts) it would be more appropriate to adjourn the case beyond the elections. Justice Bharucha made it plain that he did not want the court to be drawn into any political controversy: in my humble view, this was a wise decision.
Of course, even though the heavens may fall, justice must always be done — but for the sake of the court’s image, not necessarily during election-time.
Fali S. Nariman is a senior advocate of the Supreme Court of India
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