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Tuesday, October 19, 2021

Two steps backward

Proposal to bar candidates after framing of charges doesn’t respect due process, won’t clean up politics.


March 20, 2014 12:05:02 am

Proposal to bar candidates after framing of charges doesn’t respect due process, won’t clean up politics.

Last year, the Supreme Court had sought the Law Commission’s view on electoral reforms that could stanch criminality in politics. In response, the commission has suggested that candidates against whom charges have been framed by a court at least one year prior to the date of scrutiny of nomination papers should be disqualified from contesting polls. The candidate in question must also have been charged for an offence with a maximum punishment of five or more years of imprisonment.

To justify its recommendation, the commission has referred to the poor rate of criminal convictions and trial delays apart from the “lack of deterrence” for political parties when it comes to fielding criminals. But if lower courts have seen shoddy and lengthy criminal trials of politicians, it is for the judiciary to clean up its stables.
The CrPC suggests the framing of charges is a “statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case”. In the Supreme Court’s words, this would indicate there is “sufficient ground” to proceed against the accused. Yet, even as it laments the poor rate of convictions in lower courts, the Law Commission is evidently willing to repose enormous trust in these very institutions to satisfy the rigorous standards laid out in the CrPC. In practice, whether or not charges are framed by a court depends on the prosecution’s zeal in pursuing a criminal case.

Preliminary hearings at this stage do not constitute a platform for the accused to establish her case, simply because there is no thorough evaluation of evidence. And the “cut-off” period of one year is not an adequate safeguard simply because well before a formal announcement or the filing of nomination papers, many constituencies may be aware who the likely candidates are. This is especially so in the case of high-profile politicians.
The Law Commission’s report focuses, rightly, on the need for expedited criminal trials of politicians. Guilt can only be ascertained after a fair trial, and once appeals to higher courts have been exhausted. Quickfixes and blunt solutions — such as disqualification after the mere framing of charges — can be prone to misuse and will end up undermining the rule of law.

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