The Supreme Court directed the central government last week to constitute special courts to exclusively try criminal cases involving politicians, giving a new dimension to the much-touted ‚ÄėSwachhta Abhiyan‚Äô. In an apparent bid to purge the Indian polity, the apex court has once again risen as a sheet-anchor, having realized that no political party appeared serious to take a plunge.
The enduring neta-criminal nexus calls for a sturdy mechanism to disinfect the electoral malaise in the country. The peril of conviction and impending disqualification will serve as an effective deterrent for the political parties not to field such ticket-seekers who are in direct conflict with law. The NDA government, which stormed to power in 2014 riding on anti-corruption sentiment, must now respond positively to the judicial initiative or adopt a legislative module to jettison the tainted lot.
A game changer
During the hearing, the Centre earned the court‚Äôs ire for shifting the onus on the states, pleading that the constitution of such courts was primarily the responsibility of the states.
The Supreme Court‚Äôs mandamus to constitute special courts can be a real game-changer to shred the politico-criminal nexus to pieces. Most of the moves to annul the criminalisation of politics have come from the judiciary. Recall the quashing of a provision in the Representation of the People Act, 1951 which provided the convicted lawmakers an escape route to evade disqualification. This time again, the apex court brushed aside the Centre‚Äôs alibi that constituting special courts and speedy disposal of cases was the responsibility of state governments.
The Election Commission told the Supreme Court that it was in favour of a lifetime ban on convicted politicians and had recommended so to the government.
Why are special courts needed?
Referring to 1,581 criminal cases pending against MLAs and MPs at the time of filing nominations to the 2014 elections, the apex court asked: ‚ÄúHow many of these cases have been disposed of within the time frame of one year as envisaged by this Court by order dated 10th March, 2014? How many of these cases have ended in acquittal or conviction?‚ÄĚ
Underlining the need for special courts, the apex court referred to the workload of trial courts across the country. At any point of time, each court was handling as many as 4,200 cases which are more than optimal.
Political parties are intentionally indifferent
The intentional indifference of the political class in curbing criminalisation makes their criticism of judicial activism sound wily, even if sometimes justified. Data gleaned by NGOs like Association for Democratic Reforms (ADR) from election affidavits indicate that nearly one-third of lawmakers (1,581 MPs and MLAs) face criminal cases. But a distinction needs to be made between serious criminal cases involving violent offences like murder, or crimes against women and corrupt practices, and those criminal cases filed against politicians for organising political protests.
An analysis of affidavits from successive elections reflected that candidates facing criminal charges were twice as likely to win as those with a clean record. All the political parties compete to pick the ‚Äúwinnable‚ÄĚ candidates with greater resources: monetary affluence and muscle power. Those with criminal antecedents are often found having mastered the knack to fleece and please all those who matter. Under the guise of ‚Äúwinnability‚ÄĚ, they pick candidates with muscle or money power and caste, regional or religious affiliations.
The SC had passed a landmark judgement in July, 2013 banning politicians with criminal records from contesting elections which was overturned by the Parliament, allowing politicians who were detained in jail or remained in custody to contest elections. The logic behind the Parliamentary legislation was that politicians who have been placed in jail have only undergone temporary suspension of rights while the apex court, on the other hand, had held that only those who can vote should be allowed to contest elections.
It is deplorable that those who have committed serious crimes such as murder and extortion continue to remain in office. Most legislation across the world prevents those with criminal records from holding office or being part of the government machinery. Nowhere in the world are rapists and convicts given the right to contest elections and get a chance to make laws except in India.
India is notorious for being a nation that is led by convicted politicians who have been charge-sheeted in scams. International laws are very strict regarding the need to regulate and monitor criminals. However, our Parliament is allowing these notorious law-breakers to contest elections.
The apex court by its March 3, 2011, verdict setting aside the appointment of the then Chief Vigilance Commissioner P.J. Thomas as non est had said that though personal integrity was not irrelevant but institutional integrity was the touch stone of public interest.
After years of prevarication it has finally given notice to the government to ‚Äúimmediately debar the convicted persons to contest elections and also those against whom charges of heinous crimes have been framed by a court of law.‚ÄĚ Under the current law, no convicted person can stand for election. But an MP or MLA who is subsequently convicted of a crime can continue in office till his or her appeal is finally dispensed with (which can take decades) as long as the appeal is filed within 90 days of conviction.
The EC wants all candidates facing court-framed charges, which on conviction carry a sentence of more than five years, to be debarred from contesting elections. Only conviction should no longer be necessary for debarring. But will the central government and state governments blink to throw out the tainted politicians? Surprisingly, a 20-month-old proposal by the law ministry to amend the Representation of Peoples Act has been quietly buried. The law ministry‚Äôs draft covered criminal offences carrying jail terms of more than five years as well as corruption charges, provided the charge sheet was filed against the candidate at least a year before the relevant election.
The threat to disqualify criminally-charged candidates is a necessary first step. The Supreme Court must follow up its observation to order the government to amend the 58-year-old Representation of the People Act in accordance with the Election Commission‚Äôs demand. Lacking constitutional authority, the EC cannot force change on the government without the Supreme Court‚Äôs decisive intervention.
If a party, in defiance of the amended law, gives a ticket to a candidate with a court-framed charge-sheet, the party should by law be disallowed from contesting that seat in the relevant election. If it repeats the offence in another seat, the party should be derecognized by the Election Commission.
Let us hope the Supreme Court continues marshalling the central government to take a decisive step when the matter is taken up next time.