The courts efforts to cleanse politics point to systemic loopholes that still need to be plugged
The Supreme Court ruled last Wednesday that sitting members of Parliament (MPs) and members of legislative assemblies (MLAs) will have to forfeit their seats if convicted of breaking the law.
Justifiably,many anti-corruption activists reacted with glee as this judgment marks yet another victory in their efforts to cleanse electoral politics of the twin threats of muscle and money. Indeed,the courts decision comes on the heels of the Central Information Commissions ruling that political parties are subject to the Right to Information Act,opening the door to greater scrutiny of the parties murky finances.
While some politicians welcomed the courts landmark decision,many parties responded with caution,if not downright scepticism. The ruling is a win for democratic reformers,but it is not quite time to pop the champagne corks. Pronouncements that the courts ruling bans criminals from holding office or that this decision will cleanse politics of tainted representatives are overstated.
But first,the good news. Under Section 8(4) of the Representation of the People Act,1951,sitting MPs and MLAs can serve in office even if they are convicted of a crime,unless and until their appeals are exhausted. A PIL suit filed by Lily Thomas and Lok Prahari claimed this latter clause advantages elected politicians over aspirant candidates,for whom a conviction merits disqualification,appeal or no appeal.
In siding with the plaintiffs,the court stated that this special exception afforded to elected representatives is ultra vires,or beyond Parliaments constitutional powers. So as to not penalise current incumbents,who won office under the prior regime,the ruling will only apply prospectively.
It should be obvious why this is a victory for Indian democracy. The idea that some of the countrys foremost lawmakers are simultaneously convicted law-breakers makes a mockery of the institution of Parliament,not to mention Indias tagline as the worlds largest democracy.
Statistics about the criminal antics of Indias elected representatives scarcely need repeating. Out of 543 Lok Sabha MPs,162 face pending criminal cases,with at least 75 facing serious criminal charges (as defined by the Association for Democratic Reforms,or ADR). The situation in state assemblies is equally dire.
Yet,very few of these criminally suspect legislators are convicted,or for that matter,are likely to be convicted,given the inadequacies of Indias justice system. Irrespective of the defendants guilt or innocence,in India,the wheels of justice move slowly in the countless years it takes for a case to be brought to its logical conclusion,prosecutors are transferred,witnesses mysteriously disappear or get cold feet,and justices succumb to old age. Let us not forget that many individuals involved in criminal activity seek elected office precisely because politics offers a promising avenue for circumventing justice. While Indias elected representatives do not have formal immunity from prosecution,office-holders can rely on the trappings of office to delay or derail justice. Chief among these is the ability of elected politicians to transfer pesky officials for reasons unrelated to their performance.
Thus,even after Wednesdays ruling,elected MLAs and MPs who face criminal suspicion but have not yet been convicted have an easy way out. Thanks to the outcome of another PIL instigated by ADR,at the time of their nomination,every assembly or parliamentary candidate must submit an affidavit declaring any pending criminal cases. Yet,immediately after filing these affidavits,candidates openly repudiate these documents invariably attributing their rap sheets to false or politically motivated cases. Thus,when Arvind Kejriwal lambasts Parliament for providing a refuge for rapists,murderers and looters,politicians predictably feign outrage. Cases,they insist,are hardly equivalent to convictions. This excuse quite literally serves as every indicted politicians get-out-of-jail-free card.
It is no secret what is needed to plug this loophole. At a minimum,governments must roll back the transfer raj,a badly abused practice nearly everyone agrees is administratively and socially inefficient. This would eliminate the criminal-turned-politicians ace-in-the-hole. But more ambitious action is needed: the time has come for Parliament to take up the long-awaited electoral reforms promulgated by the Election Commission. The first point on the ECs list is that any candidate against whom charges have been framed by a court,at least six months prior to the election,and for an offence punishable by at least five years in jail,should be disqualified. Yet politicians,and frankly many reformers,find this proposal draconian. To circle this square,such a move could be coupled with the establishment of a special electoral tribunal charged with adjudicating serious criminal cases against political aspirants. This would be tantamount to a fast-track court a policy of last resort but there is hardly a better case for speedy justice than when it comes to those actually making the laws.
Barring such decisive action,perhaps we ought to be comforted by the current trickle of small victories,as painstaking and incremental as they might be. When it comes to the criminalisation of politics,we would be operating in the dark,were it not for the relentlessness of NGOs like ADR,the foresight of the courts or the integrity of the EC. But as we celebrate the courts decision to put convicts in their rightful place in jail rather than Sansad Bhavan lets remember one thing: democratic reformers have won the battle,not (yet) the war.
The writer is an associate with the South Asia programme,Carnegie Endowment for International Peace,Washington,DC
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