Criminalisation of politics: The verdict is a disappointment

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The verdict is a disappointment — what we need are untainted MPs
The verdict is a disappointment — what we need are untainted MPs

The verdict is a disappointment — what we need are untainted MPs

The September 25 verdict of the Supreme Court on criminalisation of politics left much to be desired. The Election Commission (EC), frustrated by its own helplessness in the matter, has been crying hoarse to the government, political parties and the apex court for help in stemming corrupt influences on our legislatures. The court’s verdict essentially passed on the responsibility to the EC itself.

The court also said that it cannot play the role of Parliament. But Parliament, regardless of the party of coalition in power, has not been playing its own legitimate role. According to Article 102(1) of the Constitution, Parliament is obliged to make a law on the matter. But if history is any indicator, there is a slim chance, if any, that legislative action will follow the Supreme Court judgment.

Directions issued by court

The directions given by the Supreme Court are welcome but have some practical issues. For instance, the apex court has instructed political parties to put on their respective websites information on candidates having criminal antecedents. How many people are capable of accessing websites? Also, both the candidate and the political party are required to publicise the information. Why would they actively publicise anything that goes against their interests?

Third, the EC is asked to publicise the candidates’ background. The EC already displays these details, given in the candidates’ affidavits, on its website. The only difference this time is that these details are to be given in bold. Any more advertising by the EC will create problems, like inviting allegations of subjectivity, bias and partiality.

Section 8 of the Representation of the People Act, 1951, bans convicted politicians from contesting. However, those facing trial, no matter how serious the charges, are free to contest.

supreme court
supreme court

In fact, political parties appear to be competing to field criminal candidates, as their ‘winnability’ is proven to be more. The past three Lok Sabhas have seen an increasing number of legislators with criminal background — 128 in 2004, 162 in 2009 and 184 in 2014.

The EC proposal to bar candidates accused of an offence punishable with at least five years of imprisonment from contesting elections, after charges are framed against them by a court, has been opposed by many parties. The opposition is based on two grounds: ruling politicians will misuse this against the Opposition; and the law of the land assumes everyone to be innocent till proved guilty or convicted.

EC’s safeguards

The EC’s safeguards in this regard are crystal clear. First, all criminal cases will not invite a ban; only those concerned with heinous offences like rape, dacoity, murder and kidnapping will. Second, the case should be registered at least six months before the elections. Third, a court must have framed the charges.

Further, assertions regarding a candidate being “innocent until proven guilty” are debatable. After all, there are about 2.7 lakh prisoners in jails still under trial and hence innocent. Yet, they are denied fundamental rights like right to liberty, freedom of movement, freedom of occupation and right to dignity. May I remind that contesting elections is not even a fundamental but a statutory right?

The verdict has arrived as a huge disappointment when seen in the context of the need for untainted parliamentarians. Judicial activism saved this country many times when the executive and the legislature were not willing to do their job. We know from history that the legislature has not moved on this front. This was an activist measure from the judiciary that would have been welcome.

The order is in line with the principles of natural justice and separation of powers

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