Updated: September 10, 2014 8:08:18 am
Many felt that the Supreme Court judgment of August 27, which advised that persons chargesheeted in criminal cases should not be appointed as ministers, lobbed the ball back into the prime minister’s court. Now that it has brought the “criminalisation” of politics back to centrestage, the response of the prime minister and chief ministers will be watched with great interest.
Was the SC’s advice judicial overreach? According to some, the court has no business giving advice to the political executive. For others, the SC actually exercised judicial restraint by not prohibiting such appointments outright and stayed clear of possible overreach, while drawing attention to the constitutional concern for probity in public institutions. It referred to several SC judgments that had emphasised democracy as a cornerstone of the Constitution and drew the attention of the prime minister and chief ministers to constitutional expectations. There is also a view that the SC should not have “shirked” its responsibility and adjudicated on this critical issue, instead of merely advising.
Protecting the parliamentary system from criminalisation has been the intention of the law from the beginning. The election law (Section 8 of the Representation of the People Act, 1951) disqualifies a person convicted with a sentence of two years or more from contesting elections. But those under trial continue to be eligible to contest elections. The situation would have been acceptable if the trial were completed and the verdict given within a reasonable period of time.
What is the way out? There are three possible options. One, political parties should refuse tickets to the tainted. Two, the act should be amended to debar such persons from contesting elections. Three, fast-track courts should decide the cases of tainted legislators quickly.
The SC has repeatedly expressed concern about the purity of the legislatures. In 2002, it made it obligatory for all candidates to file an affidavit before the returning officer disclosing criminal cases pending against them. Civil society organisations like the Association for Democratic Reforms (ADR) analyse and publish such information. The concern of the apex court has been increasingly clear from a series of judgments. The famous order to introduce NOTA was intended to make political parties think before giving tickets to the tainted. The Lily Thomas case (2013) ended the unfair advantage that legislators enjoyed even after conviction.
According to the ADR, 187 MPs in the current Lok Sabha face criminal charges (that is, 34.4 per cent). Of them, 113 face serious criminal charges. The number has gone up from 162 (76 serious) charges in 2009 and 128 (58 serious) in 2004. This obviously shows the political class and legislature in a poor light.
In a rare instance of unanimity, all political parties have come together to oppose the proposal to debar perpetrators of even heinous offences during pendency of the trial, on the grounds that false criminal cases may be filed by opponents. This concern is valid. However, the proposal itself has three safeguards. First, all criminal cases would not invite the ban, only heinous offences like murder, dacoity, rape, kidnapping or moral turpitude. Second, the case should have been registered at least a year before the elections. Third, the court should have framed the charges.
The opponents of the proposal also argue that the jurisprudence followed in the country holds that a person is innocent until proven guilty. But the presumption of innocence until conviction is legally ignored in the case of those under trial. About two-thirds of the nearly 4 lakh persons lodged in jails are undertrials and are therefore “innocent”.
Yet they are locked up, denied their fundamental rights of liberty, freedom of movement, freedom of occupation and dignity. Does this not violate the fundamental right of equality? If the rights of an undertrial can be suspended within the ambit of the law, what is the fuss about temporarily suspending the right to contest an election, which, incidentally, is only a statutory right?
The debate over the issue raises several questions. Does the framing of charges involve the application of judicial mind? Though legal opinion is divided, many jurists, including senior high court judges, say several cases are thrown out at the stage when charges are framed. This shows application of mind even at that stage. The Law Commission, in its report in March 2014, accepted this contention after consulting constitutional experts.
Does debarring the chargesheeted before conviction go against the Constitution? The conditions for disqualifying a person from contesting an election to the Lok Sabha or a vidhan sabha are laid down in the Constitution (Articles 102 and 191). But it also provides for disqualification “under any law made by Parliament”. The Election Commission, the Law Commission and citizens have been demanding a law debarring tainted candidates from contesting polls.
What if the minister is found innocent after a long trial? He would have been denied a position that he was legitimately entitled to. But then, how many young persons found innocent of terror charges have got their lives/ jobs back? And what if a legislator is found guilty of rape after a decade?
Another argument is that there can be no discrimination against anyone on the grounds of pendency of a case. If so, why was the CVC, P.J. Thomas, removed by the SC just because there was a case pending against him? The principle enunciated by the court was maintaining “institutional integrity”. But then, isn’t the institutional integrity of the legislature, a more important, constitutional body than the CVC, which is just a statutory body, even more vital?
Do fast-track courts discriminate against the lakhs of other cases awaiting a decision for years, and are they therefore illegal? No. Fast tracking has been the accepted norm. The RP Act requires the high court to decide on election petitions within six months. The fact that courts have been taking years to decide on election petitions makes it an issue of dereliction, not legal infirmity. Special CBI courts, consumer courts, special courts for economic offences and, more recently, fast-track courts for rape cases do create special categories for adjudication, and nobody has dubbed them discriminatory.
In any case, the issue of fast tracking has now been clinched by the landmark judgment of March 2014, by which the SC accepted the urgent need for cleansing politics of criminalisation and directed all subordinate courts to decide on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court. That should put an end to the endless impasse. With a positive judicial disposition and a strong political mandate for an avowedly corruption-free India, the situation is ripe for resolution. Let’s not miss the bus.
The writer is former chief election commissioner of India
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