India – What was the hurry?

Vinod Sharma

The Supreme Court’s (SC) order directing a probe into Narendra Modi’s role in the 2002 Gujarat riots cannot be faulted on grounds of law. The problem is with the timing and the possible impact of the ruling on the April 30 polls in the state.

Nobody doubts the punctiliousness of the Bench that directed the Special Investigation Team to inquire into slain Congress MP Ehsan Jaffri’s wife Jakia Nasim Ehsan’s allegations of murder and criminal conspiracy. But couldn’t the judges have deferred the matter till the end of the Lok Sabha elections on May 13, or till April 30?

The question is relevant because the order against Modi, 11 members of his Cabinet, bureaucrats and policemen has the potential of polarising the electorate in the state where communal peace has been tenuous since the 2002 pogrom. Political pundits are already arguing whether the probe that ended the complainant’s seven-year-long wait for judicial redress, could be a blessing in disguise for the CM?

It’s hard to miss the irony of the situation as most political parties, including the BJP and the Congress, have desisted in the campaign, which closed on Tuesday, from any recollections of the retributive communal violence in the state. The contest is over strong leadership, good governance and an inclusive polity.

The probe directive has indeed arisen from a matter pending before the SC and is by no means an indictment or proof of Modi’s complicity in the riots. But such nuances of the law often get lost in the din and bustle of elections. The worry is about the campaign being vitiated in its twilight phase by biased, politically ingenious interpretations of the SIT probe.

An identical situation had arisen in the SC, a couple of weeks ago, in the disproportionate assets case against Samajwadi Party leader Mulayam Singh Yadav and his son Akhilesh Yadav. The judges rejected the plea that the ruling be delayed to obviate electoral implications. They held back their order only on the technical point that a larger Bench of the same court was yet to decide the legality of a CBI probe without the approval of the state government.

Article 329(b) of the Constitution talks of “bar to interference by courts in electoral matters.” Election in this case means the entire process starting from the notification to declaration of results of candidates to (the date) of completion (of the process).

The order in the Modi case is not the least in violation of this provision. But the court would have been in consonance with its spirit, had it decided to defer the ruling until completion of polling in Gujarat or the election process on the whole.

Many legal experts concurred with this view but were unwilling to go on record for the very reasons that they expected the court to reserve its ruling till after the polling date. For his part, former Chief Election Commissioner G.V.G. Krishnamurthy advocated “judicial circumspection” in the interest of free-and-fair polls: “Keeping the spirit of 329(b) in the national interest, the Supreme Court could have deferred its orders till the completion of election, if they could in the absence of urgency in the matter.” On the urgency aspect, it would be pertinent to mention that Ms Jaffri moved her special leave petition before the apex court in December 2007 after failing to get relief from the Gujarat High Court.

Krishnamurthy’s call for “judicial circumspection” is akin almost to the ‘judicial statesmanship’ the SC so often demonstrated in the early decades of Independence to transcend controversies and take a holistic, long-term view for strengthening institutions as well as social and institutional harmony. Unlike the executive and the political class, the SC needs no election-time model code. Its conduct is a model for other institutions.