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Thursday, October 24, 2019

Supreme Irony


Will the recent apex court verdicts stop criminals in politics? The jury is out...
TSI | Issue Dated: July 28, 2013, New Delhi
Tags : Criminal politicians | Tainted politicians | Supreme Court | CBI |

Sometimes, Supreme Court verdicts have the power to change the destiny of a nation. In 2000, Al Gore of the Democratic Party won more votes nationwide than Republican George W Bush in the American presidential elections. Yet, in a hugely controversial decision, the American Supreme Court ruled in favor of Bush. That is a verdict liberals across the world rue, and curse. In March, 2007, the then military ruler of Pakistan General Pervez Musharaff 'suspended' the Chief Justice of the Pakistan Supreme Court Ifthikar Chaudhury. Going by past track record, the military dictator should have prevailed. But in a historic verdict in July, 2007, a Bench of the Supreme Court declared the suspension to be illegal. That set off events that led to the exit of Musharaff and the restoration of democracy in Pakistan. India too has seen similar verdicts. In 1975, after the Allahabad High Court set aside the election of Prime Minister Indira Gandhi, a state of Emergency was declared and opposition leaders and workers were arrested across the country. Every High Court that was approached ruled that citizens had a right to challenge their detention even during an Emergency. Unfortunately, in June, 1976, in the now notorious 'habeas corpus' case, four out of a five member Bench of the Indian Supreme Court ruled in favor of Indira Gandhi.

Many legal analysts say that the Supreme Court has been trying since then to wash off the stains of that verdict. Two back to back recent verdicts clearly attempt to stop “criminals” from contesting elections in India, apart from slamming the government for trying to subvert the law. First it was the ‘caged parrot’ comment for the Central Bureau of Investigation (CBI) followed by a rap on its knuckles for the delay in filing a chargesheet in the Aircel-Maxis deal and now banning convicts from contesting elections. For over six decades now, the Parliament has been shielding tainted politicians under immunity provided under Section 8(4) of the Representation to Peoples Act 1951. For years together, under trial politicians continued in office, contested elections from the confines of a prison ward and even won. All that, and more, is set to change now - all thanks to a suddenly active Supreme Court(SC).

Two landmark verdicts delivered by the apex court on July 10, 2013 could go a long way in clearing the dirt from politics in India. In the first case, the petitioner Lily Thomas challenged the validity of Sec. 8(4) of the RP Act, as invalid to Article 102 and 191 of the Constitution. Subsections 1,2 and 3 of section 8 of the RP Act set out certain offences, penalties and periods of disqualification from the date of conviction for contesting the election as an MP or state legislature. Section 8(4), on the other hand, facilitates convicted persons to contest the election or continue in office after filing an appeal within three months from the date of conviction until the appeal is disposed. A bench of Justices A K Patnaik and S J Mukhopadhayay struck down this provision as invalid, meaning that a person who is in jail or in police custody, shall no more enjoy the immunity to contest elections to legislative bodies.

In the second verdict delivered by the same bench, the court ruled that only an elector can contest the polls and that he/she ceases the right to cast vote due to confinement in prison or being in custody of police. The court, however, said that disqualification would not be applicable to a person subjected to preventive detention under any law. Referring to the RP Act, the apex court said that the Act (Section 4 & 5) lays down the qualifications for membership of the House of the People and Legislative Assembly and one of the qualifications laid down is that he must be an elector. The bench said Section 62 (5) of the Act says that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.

The court passed the order on an appeal filed by the Chief Election Commissioner and others challenging a Patna High Court order barring people in police custody to contest polls. Reading Sections 4, 5 and 62(5) together, the apex court concluded that a person in jail or police custody cannot contest election. “We do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State,” the SC said.

Going by the intent of the apex court, political parties have been understandably guarded in their reactions to these judgments. Though sources say that the government is all set to appeal against the ruling, parties are treading carefully. “We are not in defensive mode. We are in consultative mode, consulting within our party, consulting with other political parties as these are legal issues,” said Union finance minister P Chidambaram. “The BJP always welcomes any step aimed at purifying and strengthening the political system. Serious questions having wider ramifications about this issue have been raised from time to time,” said BJP spokesperson Ravi Shankar Prasad. “The Election Commission will have to study the judgment and Parliament will have to take a position on the Representation of the People Act,” said CPI leader D Raja.

The Samajwadi Party(SP), on the other hand, has decided to take the lead in protesting against the verdict. It has even called for amending the Constitution to overturn this judgment. “The SP is already up and against it. They want constitutional amendment to accommodate criminals. It is a matter that concerns the entire nation. You should not use junction road rules to govern us. The muck must come out,” Lily Thomas, the petitioner in the first case told TSI. “This is a big steering judgment and such reactions are going to help the cause of cleansing India's political mess. Unless there is movement, this mess cannot be tackled,” she said referring to the comments made by SP.

Such demands, however, also need to be taken in another context. It is no secret that criminal candidates are extremely dear to political parties and have helped parties reap huge electoral benefits. The larger the bahubali's clout, the stronger the influence in constituencies. However, the latest judgments could sure spell trouble for many such elements. And the list is long. Raja Bhaiya, Mohammed Shahabuddin, Mukhtar Ansari, Laloo Prasad Yadav, the Reddy brothers from Karnataka, Jaganmohan Reddy - the list is endless. As per data available, over 30 per cent of the sitting MPs and MLAs have declared criminal cases against them while 14 per cent are fighting cases that fall under serious criminal offences, most with potential sentences of over five years. These offences include murder, rape and forgery. About 1,258 out of the 4,032 sitting MLAs from all state assemblies have declared criminal cases and 15 per cent have declared serious criminal charges.  BJP leads the pack with 118 of its legislators facing serious criminal charges while Congress follows a close second at 107.

“The Samajwadi Party's threat to change the Constitution is a threat to the Constitution itself,” remarks former Karnataka Lokayukta Santosh Hegde. “It's very unfair. When a particular judgment goes against politicians and they do not like it, they say they will change the Constitution. It indicates the mindset of a class of people where any judgment, any law that prohibits or controls their activities is considered adverse and therefore they want to change the very foundation of law, which is the Constitution,” he adds. Justice Hegde is known as the man whose fearless pursuit of illegal mining cases led to the resignation of former Chief Minister Y. S Yediyurappa and the humiliating defeat of the BJP in assembly elections. He has also been closely associated with the Lok Pal movement launched by Gandhian activist Anna Hazare. One of the key demands of the movement is a complete reform of the electoral system in its current form where criminals seem to hold an advantage over ‘clean’ candidates.

“It is a much needed step that the court has taken. Although it is quite late, it is most welcome and perhaps it will help in cleansing the system to some extent,” says constitutional expert Dushyant Dave. “Although judges could have referred to Article 101 and Article 190 to draw strength instead of relying on Article 102 and Article 191,” he adds.

Legal and constitutional experts however caution that there could be some gaps that the SC could have left out while delivering the verdict in  the second case. Some say that what the judges have ultimately held and directed 'is not borne out of the the provisions of the constitutional scheme or the provisions of the Representation of Peoples Act'. “An elector and a person who wants to fight an election are entirely different. If an elector stands disqulaified by virtue of the provisions of the RPA, it does not automatically mean that such an elector cannot contest an election. If you look through the provisions of the 1950 Act there is no such disqulaification which is provided by the statute. To that extent, the judges - though with all good intention - seem to have committed an error in interpretation,” he observes.

The judgment, in fact, could just have given them a big window. “Instead of interpreting the RP Act, the supreme court could have said that this is what we direct under Article 142 and therefore it is binding. That would have been a different situation. But on the interpretation of law, the SC seems to have made a mistake,” adds Dave. The government is likely to use this interpretation to appeal against the verdict. Elections are around the corner and parties are likely to come together to try all possibilities to overturn this decision for fear of consequences.

The end result in this case may vary. However, the SC's attempt to initiate a process of bringing equality of justice will definitely go a long way. Politicians have always been treated as a different set of citizens as compared to the other citizens of this country. Laws for other citizens are different from those for politicians for the same crime. To expect an entire clean breed of politicians may be too far-fetched a thought, but an element of cleansing is sure to follow. But here is a sobering thought. In the early years of this century, activists, the Election Commission of India and the Supreme Court tried very hard to make it difficult for criminals to contest elections. In 2002, the Parliament unanimously passed new laws that checkmated both the Election Commission and the Supreme Court. Will history be repeated?

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Issue Dated: Feb 5, 2017