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Of politicians and some verdicts

N. Gopalaswami
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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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