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Updated: July 24, 2013 01:29 IST

Of politicians and some verdicts

N. Gopalaswami
Comment (20)   ·   print   ·   T  T  

Court rulings on freebies, elections and caste-based rallies, and the CIC order on political parties are a beginning towards cleansing politics but whether they can achieve the desired result is debatable

The slew of judgments from the higher judiciary in the period of just about a month or so has been like manna from heaven on the parched earth of electoral reforms. First, the Supreme Court frowned upon freebies, which it said “shake the root of free and fair elections.” Then came the verdict on Section 8(4) of the Representation of the People Act 1951 (the Act) being ultra vires of the Constitution and along with it the barring of jailed persons from electoral contest. For its part, the Allahabad High Court banned caste-based rallies, the staple of many a political party. Not to be left behind, the Central Information Commission added its mite by declaring that political parties came within the ambit of Right to Information Act (RTI).

Varied response

The reactions have been varied to the striking down of Section 8(4) of the Act. Two prominent politicians, one from the Congress and the other from the Bharatiya Janata Party, both eminent lawyers, were in agreement with the reasoning of the court. Some have questioned it for creating two categories of convicted legislators and some others on the competence of a two-judge bench overturning the 2005 verdict of a five-judge bench. The reactions have been sharper over the part of the verdict on the jailed not being eligible to contest elections, calling it “judicial over-reach.”

Rattled perhaps by the verdict that upon conviction a legislator loses his seat, all kinds of objections have been raised. It has been faulted for discriminating by creating two categories of legislators, those who were convicted but appealed and so will continue as members and others who would hereafter immediately lose their seats. The fact is lost sight of that this so-called ‘discrimination’ is, in fact, a ‘distinction’ the court made in the larger interest of preventing chaos and confusion that might arise if many legislators lost their membership suddenly.

Another issue was that a legislator losing his membership upon conviction cannot get it back if acquitted on appeal. Those who raise it conveniently forget that a disqualified person who lost the chance to contest has no remedy either if acquitted in appeal soon thereafter. These are inevitable as no law can be made to perfectly suit every situation.

As for the barring of jailed persons from electoral contest, the verdict may perhaps not stand on further scrutiny. While the law takes away the right to vote of a person in jail, that it does not take away his eligibility to be registered as an elector seems to have escaped notice. Only those who are disqualified lose the eligibility to be electors. May be the corrective will come in a review petition.

Misplaced hype

Some have quoted legal experts to claim that a larger bench of the Supreme Court has already upheld in 2005 the provision in Section 8(4) and so the present judgment is erroneous. They have also faulted it for failing to interpret the law “bearing in mind the object of the provision for enactment” which is to protect the House. All this hype seems misplaced. The simple fact is that before the Constitution bench in 2005 the question agitated was only the duration for which the protection afforded by Section 8(4) would be valid, not its vires, and the court had clarified that it was available only till the term of that House and till the person continued to be a member.

If the political class is getting worried, it is just as well because with growing number of legislators with criminal cases, there is a real threat of this ruling creating problems but only if pending cases get decided. The percentage of legislators with pending criminal cases is not less than 15 to 20 per cent in most Houses and the number is not small. Uttar Pradesh is said to have a whopping 50 per cent of criminally charged legislators. According to some newspaper reports, there is one legislator with as many as 36 cases pending, 14 of them for murder. Another ‘gentleman’ is an accused in 12 cases of murder, out of 20 pending cases. Should we shed a tear if such ‘distinguished’ people lose their membership because of the operation of this judgment?

‘Strict and narrow construction’

In its 2005 Order, the Supreme Court Bench said in a slightly different context “while a ‘strict and narrow construction’ may not be adopted which may have the effect of ‘shutting of many prominent and other eligible persons to contest elections but at the same time in dealing with a statutory provision which imposes disqualification on a citizen it would not be unreasonable to take merely a broad and general view.” In the current context, I am sure public opinion will be overwhelmingly in favour of not a “broad and general view,” but a “strict and narrow construction” to shut off such ‘prominent’ persons from contesting elections or continuing as legislators.

But then, from another angle, the judgment declaring Section 8(4) of the Act as ultra vires of the Constitution, may merely seem “all sound and fury signifying nothing.” Given that the wheels of our criminal justice system grind slower than God’s, the chance that these ‘tainted’ legislators will easily lose their eligibility to contest elections or to continue as legislators by being convicted, seems a little far-fetched. Being ‘prominent,’ they may successfully manage to slow the system even further so that they come to no harm. That is the real danger. Interminable interlocutory proceedings or the compromising of witnesses and the like are not unknown weapons in the armoury of those who strive to slow down the judicial process.

If this verdict leads to political parties denying ticket to such ‘distinguished’ people, it would be a change for the good. But if the past is any guide, it does not inspire. Notwithstanding the sentiments expressed at the highest level by the two prominent national parties, before the 2009 Parliament elections, there was no substantial improvement when it came to ticket distribution. In fact, the number of MPs with criminal record actually went up by 25.78 per cent for those with criminal cases and by 36.36 per cent for those with serious criminal charges in the 15th Lok Sabha as compared to the 14th. So it is a moot point whether this verdict, though welcome as it strikes a blow for ‘cleaner’ legislators, will lead to a substantial reduction in the number of ‘tainted’ law-makers. A legislation to bar those charge sheeted for involvement at least in heinous crimes from contesting elections combined with fast-tracking of such cases is the need of the hour if we are keen on the decriminalisation of legislatures and politics. The verdict by itself is only a case of crossing half a well.

Hollow argument

A self-serving argument that such a special provision is needed to protect the House would ring hollow in this age and time. Political parties cannot escape responsibility when they merrily distribute ticket on the grounds of winnability to tainted candidates as though in a country of a billion people they could not find untainted people to contest elections. Seeking to save this provision by asking for a review, moving a larger bench, or through an alternative enactment will only mean conferring an advantage where it is least deserved, namely on persons with criminal cases against them. Political parties should not, in the first instance, nominate such persons but should seek the fast-tracking of such cases against their tainted members. Therein lies the remedy, not in seeking a special provision.

‘Institutional Integrity’ is a phrase that has acquired much currency after the Supreme Court verdict in the CVC appointment case. If appointing a ‘tainted’ officer can compromise the integrity of an institution which is Parliament’s creation, how can the presence of ‘tainted’ legislators not compromise the institutional integrity of the Parliament and Assemblies, the highest symbols of our democracy? It is time political parties considered that the country, the legislatures and the public deserve better.

(The writer is former Chief Election Commissioner of India)

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The fact remains that this can only restrict certain politicians who are convicted and cannot appeal fast enough. All these 15,20, 35 % people we are taling about are well connected and highly resourceful. I dont think reducing the timae they have to appeal would make any significant difference to the number of such people contesting or even winning elections. I would not aggre with certain comments that are posted on illiterate population bieng responsible for electing chargesheeted people. The problem somewhere lies in the fact that we dont have enough options. It is almost like a strong entry as would be suggested by Porter, that political system would not allow many clean profiles to contest elections strongly. People who governments would be formed by parties and not by one or two individuals. If parties follow thw wntry barrier, then it automatically implies lesser choices for people.

from:  Ritvij
Posted on: Jul 25, 2013 at 00:49 IST

Supreme court judgment is apt for our politics

from:  Srinivas Reddy D.
Posted on: Jul 25, 2013 at 00:30 IST

The supreme court's verdict on section8(4) is appreciable on this regard to clean up parliament and assemblies by stopping them from contesting election. But still we have to achieve a milestone in many ways.The verdict is the first step towards achieving a clean and integrated system....

from:  Bandana
Posted on: Jul 24, 2013 at 20:59 IST

I agree that Supreme Court's judgement have come at a time when our politics need an immediate cleansing, but what is debatable is will such hurried changes and rulings will be helpful in cleansing politics or excruciating it further. If persons in jail are not allowed to contest, what all a corrupt politician need to do is just register a criminal case on his opponents and put them behind bars. It seems like instead of addressing the virus i.e. slow judiciary, we are more concerned, as always, only to cure the fever. If at all we had fast courts and less number of pending cases, such situation would not have arisen at all... As it doesn't seem possible in near future to bring Fast Track courts, SC's judgements will empower Election Commission to remove the dirt of politics, but not without certain black spots to address..

from:  Srujan
Posted on: Jul 24, 2013 at 18:29 IST

in the last 2 years of upa regime we have seen scams worth lacks of
crores of indian ruppee ,, all these were allegedly done by few
corrupt minister , needless to mention that only a corrupt and tainted
member of the house can have that tainted mind and will to cause such
a huge loss to exchequer. whenever such tainted members are placed in
certain key positions of the government they make all out efforts to
make the maximum out of it..!!
parliament is not the place for the tainted in fact its the respective
jail where they should be sent ..
keeping all these things in view Honorable sc has taken a very bold
and a pro-democratic decision .
i hope the general populace of india and the politicians of this
country understand this ..
THIS GREAT JUDGEMENT SHOULD BE SEEN AS ONE GREAT STEP TOWARDS MAKING
INDIA CORRUPTION FREE..

from:  M. Manjunath
Posted on: Jul 24, 2013 at 17:34 IST

I, strongly agree with the ruling & also, with the last para of this article. Yes, if even on an apprehension of a petty offence, a 'babu' is immediately removed from his office; why not "we the people of India" immediately remove all the tainted legislators off their chairs? These tainted politicians are making mockery of whole system. INDIA must again rise to cleanse the politics, for the development.

from:  Amitoj Singh
Posted on: Jul 24, 2013 at 17:20 IST

An excellent article,the like of which we rarely read these days.It is my
desire[many of your readers may agree] that the Hindu periodically publish
articles on various issues by eminent persons.For this the Hindu can have
a pool/panel of experts from various fields.Such persons should not be
biased and also not obliged to the ruling dispensation. These days there
is heavy flow of information.But the readers long for authentic
information,especially on issues like corruption in high places,the
performance and non performance of investigating agencies,govt initiative
or the lack of it to halt economic slowdown etc.The Hindu can revive its
past glory.

from:  S.Srinivasan
Posted on: Jul 24, 2013 at 17:20 IST

There cannot be any provision or law that can stop criminals from
entering into politics. But steps can be taken to reduce it. This job
cannot be perform by legislature, so judiciary is the option to
correct it. Second, people need to be educated and informed about
their rights which can be the best possible solution for reducing
criminalizaion in politics and then only one can think of applying the
"Right to Reject". Third, there should be some minimum eligibility to
become a politician as there are in all other profession. A person
cannot be a born politicians, the skills can be acquired.

from:  Akshay Dhadda
Posted on: Jul 24, 2013 at 16:10 IST

Cleaning up of the ruling class must be the very first priority. Criminal cases against legislators should be dealt in fast track courts at an ultrafast speed. Parliament, which is the heart and soul of our democracy, should be clean and clear prior to everything else because if the one is himself not clean, how can he be even thought of as a cleaner...?

from:  Shivam Shukla
Posted on: Jul 24, 2013 at 15:38 IST

Hallmark of an able bureaucrat is in analysis and putting across in
writing a well balanced,thought provoking and easily comprehensible
one's point of view.
Present piece is of that category. I did not even had the slightest urge
to recheck the facts by going through the cited judgements. The way
facts were discussed with consummate ease were captivating and did not
brook any distraction.

from:  Anurag Bhalla
Posted on: Jul 24, 2013 at 15:06 IST

In a market economy as practiced in our country , every thing including feelings is a merchendise. Given that, an election is actually a market or santhe where Votes are purchased . The len den works into various forms Rupee perKg offers, laptops , mid daymeal offers and such other purchase incentives to capture the loweer middle class and lower class markets. These "SALE" gimmicks can stop once you aresuccessfully elected and purchase the power. Such cheap trade being the order of the day, it is hypocracy to write erudite analysis of such behaviour

from:  harihara
Posted on: Jul 24, 2013 at 14:11 IST

As we have seen in recent poll result that corrupt party came into
power.
we ever think why people electing corrupt party despite of revealing
lot of scam cases. why people are choosing inappropriate people as a
ruler.
people are choosing those who are powerful, corrupt, facing lot of
criminal cases etc.
actually India's most of the population living village or rural area's
and these area are backward, illiterate. they are unable to judge the
people. also they don't have any chance to choose appropriate
candidate if all candidate belongs to criminals background.
We should have right to reject to ban criminal background candidate in
participating in the election

from:  Anil
Posted on: Jul 24, 2013 at 14:08 IST

I am agree that,these are inevitable as no law can be made to perfectly
suit every situation but our legislator at least try to close the door
of parliament for criminals who are under major conviction such as
number of rape and murder cases.

from:  Ravikiran
Posted on: Jul 24, 2013 at 12:55 IST

Sir,
An excellent article. The pronouncements about the elections, freebies and caste involvement in politics are very bold, and must have been brought about after deep loud thinking by those learned souls who will be remembered for laying building stones for a cleaner democracy. That the writer, an eminent professional with stint as CEC, has had to lament about the ills of this democracy, much fought for hard earned by our nation's forefathers is a point all right (meaning 'correct') thinking citizens should focus serious attention on. In a democracy like ours, or even in human life as evolved up to date, only the negative thinking gets to be popular and people with negative pursuits get to be attached to each other and can sail in any atrocious boat unmindful of its effects on the other brethren. In our democracy, the concept of common man is in the stages of vanishing. The need of the hour is for all good people to unite and act in unison so that the democracy is meaningful system.

from:  N Ganapathy Subramanian
Posted on: Jul 24, 2013 at 12:53 IST

it was really a good point made by the author that if institutional
integrity is must for a government officer then why not for
legislators. it is right that people of this country have the power to
judge the politicians but we have a long way to go before becoming
such mature democracy. we must put enough filters before so that only
good candidates may be able to contest elections. it is often reasoned
that many times politicians are falsely implicated. but one person may
not be implicated in 32 cases including 14 murder cases. besides
courts and civil societies must also work to bring police reform in
this country and to make these medieval police establishments as a
modern one .

from:  kamlakant pandey
Posted on: Jul 24, 2013 at 12:12 IST

The recent Supreme Court Judgement of not providing convicted people
the chance to contest election is a welcome move. The verdict has
arrived when there is too much cleansing needed at present. More areas
to have a re look might be by making Election Commission more
powerful, given full powers to curb things by eliminating wrongful
candidature right at the beginning, more coordination between the EC
and and the law enforcing departments, faster justice delivery system
in case of conflicts, etc.
However, we need to understand how far the support will be provided
across the political circles regarding this, there is every chance
that by passing amendments in the parliament may dilute the judgement,
which people should not let it happen, since all politicians derive
power from the people and they are not made on their own.

from:  Hareesh Kumar
Posted on: Jul 24, 2013 at 11:21 IST

It is quite natural that both these verdicts, which go against the
interest of the major political parties harbouring criminals, mafias and
even murderers in the party, cannot be swallowed by them. It is the
people who have to compel them to implement these verdicts which will be
a major step towards attaining clean politics.

from:  dipendutta
Posted on: Jul 24, 2013 at 10:48 IST

Sir,
while trying to cleanse politics we have focussed a lot of efforts on
the political parties and their members. A more moot point is why are
these criminals more likely to win elections. Why are people voting
for them in this day of easy availability of information? How does one
educate the larger public on the evils of voting based on caste
considerations or selling their votes for freebies? These too must be
addressed. I must mention that such educative ads before elections
have been conducted by the EC during the recent Karnataka
elections.But Caste was the sole factor in electing many corrupt
politicians including an ex-chief minister who was thrown out of the
party for being corrupt. Why were people blind to the corruption
charges, could they not find another representative even if it was
within their own caste? I believe we are getting the politicians we
deserve. The problem actually lies in us, the politicians merely
mirror the corruption that lies in the larger populace

from:  yugandhar
Posted on: Jul 24, 2013 at 09:48 IST

Before implementing these things the law enforcement departments (police CBI) should be made independent and impartial machinery should be there to monitor these wings. Greens should be banned and any party which announces such things should be banned for a period of six years. Election related cases should be disposed within six months.

from:  H K Kishore
Posted on: Jul 24, 2013 at 08:24 IST

Every concerned citizen is extremely worried about "criminalization" amongst sections of parliamentarians and legislators. The recent Supreme Court judgement is therefore seen by many as the path to recovery of the national conscience. Will the national parties like the Congress and BJP and major regional parties like the SP, BSP, DMK, AIDMK be prepared to make the Supreme Court judgement a part of their election plank in 2014?

from:  Prosenjit Das Gupta
Posted on: Jul 24, 2013 at 07:45 IST
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