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As the state goes to the polls in two months, political temperatures have shot up and even embroiled the judiciary. But strong judges have ensured that their independence remains unscathed
By Naveen Nair in Thiruvananthapuram


The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can take decisions independent of the political winds that are blowing.”
— Caroline Kennedy, American attorney and daughter of late US President John F Kennedy


These words reiterate the belief that independence of the judiciary is one of the pillars on which the rule of law stands. Not just in the US, but even in India the makers of the constitution envisaged the judiciary to be independent of the legislature.

And the Kerala High Court has ensured that it remains that way despite political parties trying to get it involved in their political games. Justice…

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As the state goes to the polls in two months, political temperatures have shot up and even embroiled the judiciary. But strong judges have ensured that their independence remains unscathed
By Naveen Nair in Thiruvananthapuram


The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can take decisions independent of the political winds that are blowing.”
— Caroline Kennedy, American attorney and daughter of late US President John F Kennedy


These words reiterate the belief that independence of the judiciary is one of the pillars on which the rule of law stands. Not just in the US, but even in India the makers of the constitution envisaged the judiciary to be independent of the legislature.

And the Kerala High Court has ensured that it remains that way despite political parties trying to get it involved in their political games. Justice P Ubaid of the high court minced few words when he told the Oommen Chandy government a few weeks ago: “Using the court to settle political scores and make political gains is improper and the court will not allow it.”

That a sitting judge had to say this speaks volumes of the extreme pressure the judiciary finds itself in when the legislature is making shameful efforts to convert the corridors of judicial power into arenas for a political turf war.

UDF SALVOS

The most obvious sabre-rattling was an attempt by the Chandy government to generate a verdict in the High Court against CPM’s Pinarayi Vijayan (a likely CM candidate) in the Rs 375-crore SNC Lavalin corruption case. As Vijayan was exonerated by a CBI special court in 2013, the Chandy government failed to make any further moves in the case. But with just two months left for the assembly elections, the UDF, which is already battered and bruised by corruption allegations, court cases and resignations, has decided to fire a few salvos at opposition leaders and tried to get the judiciary involved too.

However, this evoked a strong response from the court as Justice Ubaid decided to push the date of hearing to another two months. The high court went on to ask the government pleader what was the urgency in hearing this particular case when a number of other cases were pending before it. By doing so, the judiciary was sending across a strong message that the courts had no interest in political battles and its independence had to be maintained at all costs.

Senior lawyers told India Legal that this trend is worrying but there is hardly anything that can be done to prevent it. Senior high court lawyer Kaleeswaram Raj said: “There cannot be a statutory safeguard against such an issue as it will affect the personal liberty of the petitioner. What the courts can do is to be more vigilant about the motive of the petitioner in every case. Also, when a PIL is filed, they should see that the motive is in the larger interest of the public than a political gain. The media too can help the judiciary in identifying this.”


Caught In Legal Tangle

Political bigwigs who are under the scanner:

Oommen Chandy – Solar scam, Palmolein case

Pinarayi Vijayan – SNC Lavalin case

KM Mani – Bar bribery case

Aryadan Mohammed – Solar scam

K Babu – Bar bribery case

P Jayarajan – Kathiroor Manoj murder case

KC Joseph – Contempt of court


LITIGATION GAME

Both the Congress-led UDF and the CPM-led LDF are well-versed in playing the litigation game just before elections. If the revival of the SNC Lavalin case against Vijayan was the UDF’s best draw before the polls, the CPM, alleges the Congress, is behind Saritha Nair’s claims that Chandy took a bribe in the solar scam. Nair had deposed before the judicial commission that she had paid Rs 1.9 crore to Chandy through a businessman in Delhi. Even as Congress leaders fume, Chandy himself said it was a “politico-legal conspiracy” to malign him. Perhaps that may be so as Nair has always maintained that Chandy did not go “out of the way” to help her and on more than one occasion has called him a “father figure”.

If that was so, why did she make a U-turn and come up with allegations against Chandy? The Congress has enough reasons to believe that the top CPM leadership was pushing Nair to take on Chandy and the UDF to reap electoral gains. The progress of events was quick from there on. The Vigilance Court in Thrissur ordered an FIR against Chandy and power minister Aryadan Mohammed. As usual, the modus operandi employed was to move a PIL through a little-known activist by those sitting on the opposite side of the political spectrum. But the Left’s calculations went haywire when the High Court gave Chandy a breather and put a stay on the Thrissur court’s orders.

Even as the battle lines get drawn between both political fronts, it’s often judicial officers who get trapped in the cauldron. Justice SS Vasan of the Thrissur Vigilance Court is a classic example of a judge having to pay the price of daring to take on the establishment in an election year.

Justice Vasan had the gumption to order an FIR against Chandy, an unprecedented step against a sitting CM after Nair’s claims. While passing the order, Justice Vasan observed: “The law cannot exempt anyone, and everybody including Prime Minister or Chief Ministers are liable for prosecution if found guilty. Extraordinary situations demand extraordinary orders.’’

As expected, this did not go down well with the UDF which alleged that Justice Vasan was a CPM sympathizer and was acting under pressure from the CPM leadership. Perhaps the UDF had reasons to feel aggrieved. After all, it was the same judge who had ordered a probe against excise minister K Babu in the bar bribery case. Justice Vasan had even hauled up the State Vigilance and Anti-Corruption Wing for delay in submitting a quick verification report in the bar bribery case.

DIVIDED JUDICIARY

Luckily for Chandy, he got relief from the High Court. But for Justice Vasan, tough days were ahead. The High Court came down heavily on him, saying that he had overlooked legal principles while ordering a probe without a preliminary inquiry. The dejected judge sought voluntary retirement, giving more fodder to the UDF’s claims that the judge had always been a Left sympathizer. The very judiciary that was seeking to protect its independence was divided right down the middle.

Though senior jurists intervened to stop Justice Vasan from throwing in the towel, the government had to ensure that he did not make any more moves against its leaders in an election year. The judge was soon transferred to Thiruvananthapuram. Though it has been said that he sought the transfer, judicial circles say in hushed tones that he was coaxed into leaving the all-important vigilance court for the insignificant Motor Accident Claims Tribunal (MACT) in the state capital.

All this was to ensure that Chandy and the UDF did not suffer another legal setback. After all, the hearing of the Palmolein case was also coming up in the same Vigilance Court by the end of March. In this case, Chandy who was finance minister in the erstwhile K Karunakaran cabinet, was arraigned as an accused. Justice Vasan’s transfer was therefore timely for the UDF. Even an adverse observation, forget a judgment, would have hit the final nail in the coffin for the UDF.

STREET BATTLES

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The fallout of these legal battles was felt on the streets from Kannur in north Kerala to Thiruvananthapuram in the south. And leading the war from the front was the CPM. What set it off was a move by the government to send the CBI after Kannur CPM strongman P Jayarajan. This led to a chain of violence in the northern red strongholds of the state. Jayarajan, incidentally, was an accused in the killing of Manoj, an RSS district functionary in 2014. The CPM claimed that keeping Jayarajan behind bars was an attempt by the Congress and the BJP to negate the electoral advantage the CPM enjoys in Kannur.

The CPM leadership openly accused the Congress of conspiring with the BJP at the center to let loose the CBI on Jayarajan. What ensured were a return to the days of political killings in Kannur and elsewhere.

While Jayarajan’s arrest seemed to be the immediate provocation for it, the Congress and BJP leadership said the violence had always been the CPM’s best tool to revitalize its cadres before an election.

The spiral of violence led to many deaths as CPM workers clashed with the BJP and the Congress in many parts of the state. More bloodshed can be expected in the run-up to the polls. On March 8, an autorickshaw driver was hacked at while taking children to school. He was a BJP worker who was acquitted in the murder of a CPM cadre in 1999. Hardly a week later, a 28-year-old Youth Congress worker was hacked to death in Alapuzha by DYFI, the youth wing of the CPM. And on March 14, some 30 BJP workers, including former state president V Muraleedharan, were injured in a clash with CPM cadres in Thiruvanathapuram.

It remains to be seen what effect this litigation war and political violence has on the average voter. Kerala is a state notorious for its incumbency factor every five years. But with the BJP in the fray, things could be unpredictable this time.

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