The BJP’s fielding of Pragya Singh Thakur, Malegaon blasts case accused out on bail, as a Lok Sabha candidate, is contrary to a Constitution Bench recommendation to Parliament to bring a “strong law” banning political parties from nominating candidates against whom “heinous and grievous” charges have been framed. A Special NIA Court framed charges against Pragya and six others under Sections 16 (committing terrorist act) and 18 (conspiring to commit terrorist act) of the UAPA, and under the IPC for murder, criminal conspiracy and promoting enmity between communities in October last year.
The five-judge Constitution Bench of the Supreme Court led by then Chief Justice Dipak Misra in its judgment in the Public Interest Foundation case on September 25, 2018 said decriminalisation of Indian politics starts with political parties.
“In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State Assemblies,” the 100-page judgment observed.
Such a law, the Supreme Court said, would go a long way in achieving decriminalisation of politics and usher in an era of “immaculate, spotless, unsullied and virtuous constitutional democracy.”
If democracy is to survive, the court warned, it is essential that the best available men should be chosen as the people’s representatives for the proper governance of the country.
“The best available people, as is expected by the democratic system, should not have criminal antecedents...” the Supreme Court weighed in.
Citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. “The voters cannot be allowed to resign to their fate,” the judgment observed.
Rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” political parties.
“The nation eagerly awaits for such a legislation,” the Supreme Court said seven months before the BJP has set up Pragya to contest.
The Chief Justice (retired) Misra, who authored the judgment, said criminals in power are nothing but a liability to this country. Their presence in power strikes at the roots of democracy.
The judgment refers to the 244th report of the Law Commission of India which said that in the 10 years since 2004, 18% of the candidates contesting either National or State elections have criminal cases pending against them (11,063 out of 62,847). It said criminal backgrounds were not limited to contesting candidates, but are found among winners as well, for, of the 5,253 candidates with serious criminal charges against them, 1,187 went on to winning the elections they contested.
The Bench had said that its hands are tied as it cannot legislate for the Parliament by introducing a ban on the candidates facing trial for heinous crimes from contesting elections. That was squarely the turf of the legislators and not the judges.
However, the court went on to issue a slew of directions, including that candidates should divulge their criminal past to the Election Commission in “block letters”.
Candidates should first make a full disclosure of the criminal cases pending against them to the political parties under whose banner they intend to contest the polls. The parties, in turn, should put up the complete details of their candidates on their websites for public consumption, the Supreme Court had ordered.
With this judgment, the Supreme Court meant to take the process of breaking crime-politics nexus beyond the purity of legislators to encompass purity of political parties as well.
The petitioners, Public Interest Foundation and advocate Ashwini Kumar Upadhyay, had argued that lawbreakers have become lawmakers. Parliament and State legislatures cannot be a paradise for criminals.
