Tags:
Journalism of Courage
Should there be a law debarring charge-sheeted politicians from holding public office? This debate is marked by two forms of disingenuousness.
First, there is sheer political disingenuousness. The NDA wants to make a distinction between what it calls political and other cases. This is itself a political distinction. And if indeed a distinction between ‘‘political’’ and other cases can be made, the so-called political cases ought to be a matter of even more serious concern. After all, political cases may involve breach of serious constitutional principles. So there is no justification for supposing that the NDA ought to get off lightly by the distinction it is itself making. Then there is the posture of the Congress. Unwilling and unable to deal with tainted Ministers in the UPA Government, the Prime Minister proposes passing a law to debar tainted politicians from holding office. In the current context, the PM’s proposal seems like an empty gesture: an expression of his values, rather than the policy of the UPA Government.
But politics apart, most of the proposals on the table for debarring charge-sheeted members from holding office are fraught with difficulty. There is a real danger that the frustration stemming from our inability to chastise charge-sheeted politicians will lead to enacting laws that put some fundamental constitutional values at risk.
The argument for debarring charge-sheeted politicians from public office works on a false analogy. Suppose you are an employee of a bank and are charge-sheeted by the CBI for embezzlement. As the Supreme Court has held in numerous cases (eg Allahabad Bank vs Bhola), a charge-sheet gives the bank sufficient right to suspend you. So, if employees can be suspended on being charge-sheeted, why not politicians? Is the principle not the same in both cases? The bank wants to prevent the possibility of being embezzled further by allowing someone who has come under suspicion to continue. And it wants to make sure that you do not have the ability to jeopardise investigations into the matter. Similarly, we want to protect the State from malfeasance by preventing those who are officially under suspicion from holding office. And by denying them access to power, we are cutting down their ability to impede investigations.
But this analogy is flawed in many respects. First, the argument that the Courts have upheld is that employers may suspend the employee, not that they should. Second, the State has a compelling interest in ensuring that politicians do not interfere with investigations. But there are many mechanisms already in place to ensure this. Third and more crucially, a suspension in legal terms is not a punishment. You draw half a salary and if exonerated, return to the position. For a politician, being debarred on the basis of a charge-sheet is like a punishment. Exclusion from politics, even for a short time, changes the dynamics and possibilities of securing public office. So in effect, we will be punishing politicians on the basis of charge-sheets, not on the basis of their being convicted.
In case after case relating to corrupt electoral practices (eg Abdul Hussain vs Shamshul Huda, Bapat vs Meghe), the SC has given the benefit of the doubt to returned candidates. Many legal scholars have argued that the Courts ought not to apply the principles of criminal trials to political matters and should lower the burden of proof. The rule of strict proof should be abandoned in cases that will result in largely civil penalties like disqualification from holding public office etc. But this argument is mistaken because it assumes that civil penalties are less onerous than criminal penalties like imprisonment. Why should the standard of proof be relaxed because the penalties are civil? And the right to contest elections is not a trivial right. It is a fundamental acknowledgement of your standing as a citizen that should not be taken away by a mere charge-sheet.
It has been suggested that as a safeguard against frivolous charge-sheets being used to debar candidates, they can be subjected to judicial scrutiny before a determination to debar is made. But there are three problems with this proposal.
First, it does not get around the problem of why standards of proof should be lowered against politicians to subject them to civil penalties. Second, it paradoxically might hamper investigations of politicians. Investigative agencies might be forced to expedite charge-sheets, or refrain from framing them. And finally, with all due respect to our esteemed lordships, what evidence warrants, that the single most unaccountable branch of the government, the judiciary, be trusted with more discretionary power. After all, disorder in the judiciary is at least as much to blame for the non-dispensation of justice, as political venality.
Finally, in the case of employees, an employer judges whether their interests are indeed impugned by a charge-sheet. In the case of politicians, the relevant body of judgment is surely the electorate. Is all our talk about legal remedies against charge-sheeted politicians simply a way of avoiding the uncomfortable question: Why do we elect the politicians whom we want to disbar in the first place? This question takes us straight into the thicket of questions surrounding the nature and character of our democracy. The reason that talk of debarring politicians merely on the basis of charge-sheets is ultimately disingenuous is this. As has become common, we are looking for legal solutions to political and social problems. So we pretend to uphold the rule of law by treating the civil rights at stake very casually. We pretend to uphold democracy by debarring elected representatives even when they have not been convicted. And we pretend to solve the problem of a corrupt political process by handing the matter over to a branch of government itself in need of serious reform.
Our democracy would be a worthy one, if we did not need laws like the one the Prime Minister has proposed. The PM and the Opposition should simply walk their own talk, and act against tainted ministers. But in our legitimate frustrations, we ought not to compromise the principle: innocent until proven guilty. Democracies can make lots of mistakes, but if they give up on this cardinal constitutional value, they will have irremediably turned into something else.
The writer is president of the Centre for Policy Research, Delhi
