Top court tries to cleanse politics amid systemic loopholes

Law breakers should not be law makers. The irony and unscrupulousness of a person guilty of flouting the law presiding over framing laws for the people must have prompted India’s top court to rule last week that members of Parliament and state legislatures would face immediate disqualification if convicted in criminal cases.

A day later as part of the same judgment it also held that a person in jail, even if waiting for trial and not yet convicted, cannot contest an election.

The landmark judgment struck down Section 8(4) of the Representation of the People Act that allows a convicted MP or MLA three months to file an appeal to a higher court and stick to his post until its final disposal, which normally takes years, given the slow and overburdened judicial system.

The apex court has, however, made it clear that the ruling will be with prospective effect.

MPs and MLAs who have already moved appeals against criminal charges will be exempt from the action prescribed by the court.

A retrospective application of the court’s ruling would have prevented, with immediate effect, convicted criminals from taking advantage of the present loophole which enables them to continue in elected positions while their appeals are pending before the courts.

In effect, Indian judicial system’s notorious delays have been, ironically, aiding and abetting the undesirable elements, making the judiciary an unwitting accomplice to the criminalisation of the political system.

The court’s decision is a scathing comment on Parliament, which the court described as having exceeded its powers in providing immunity to politicians with dubious records.

Close to one-third members of the present Lok Sabha have pending criminal cases against them, including charges of murder, rape, abduction, kidnap and dacoity.

The increasing criminalisation of politics has paved way for various crime syndicates, unethical corporate cartels and mafia organisations to establish a nexus with lawmakers, facilitating play of massive black money in politics.

This has been happening even when the Representation of the People Act has enough rules and restriction in its current form to ensure that only the cleanest, least prejudiced, well-mannered folks contest elections.

One cannot be a candidate if one has stirred up trouble over the issue of race or religion and disturbed communal harmony. Yet breaking that rule was the highlight of Shiv Sena’s Bal Thackeray and Maharashtra Navnirman Sena’s Raj Thackeray.

Also glaring is the case of Gujarat Chief Minister Narendra Modi who won his spurs in the BJP by presiding over the appalling anti-Muslim carnage in the state in 2002.

Political parties of all hues always loudly proclaimed their desire for clean politics, but they continued to mock India’s liberal Constitution by distributing tickets to criminal elements, some of them in prison, who because of a combination of muscle and money power, could force their way into the hallowed portals of the legislatures.

Such a scenario must have given birth to an old saying that if law-breakers are not in jail, they will be in the legislatures.

Over the years, there have been an increasing number of cases in which serious allegations ranging from criminal misuse of public office, corruption, impropriety and other noxious activities have been levelled against politicians across the spectrum.

The data is pretty shocking: Out of 543 Lok Sabha MPs, 162 face pending criminal cases, with at least 75 facing serious charges.

The situation in state assemblies is equally dire with 31% (1,258 MLAs) having criminal cases against them.

The judicial intervention comes on the heels of yet another major initiative to clean up electoral politics.

In a ruling on June 3 the Central Information Commission brought political parties under the Right to Information Act, thus forcing them to share information about, among other things, sources of their funding.

The use of unaccounted money in elections along with the presence of criminals in Parliament and assemblies are two major challenges to the growth of healthy democratic practices in the country.

The judgment to stem the rot that has undermined the political system over the last quarter-century has come at the right time when all parties are increasingly moving into poll mode, beginning the process of selecting suitable candidates for election 2014.

When political parties put up a list of candidates that reads like a rogue’s gallery it can erode the credibility of any party. Unclean credentials in politics also explain the rising cynicism among the country’s young towards the political process.

When parties refuse to do what is right, their reasons to crib about judicial overreach can only invite cynicism.

The apex court should, however, institute safeguards to alleviate politicians’ worries about the potential for mischief and political vendetta.

Given the overly-politicised police and administrations, it won’t be very difficult for a ruling party to concoct fictitious cases against political opponents with a view to dumping them behind bars before elections.

It might also potentially end up imperilling governments with thin majorities in these times of coalition politics. The new rulings also appear to repose excessive faith in the lower judiciary.

Subordinate courts, which examine the facts of the case, produce judgments that are often overturned by appeals, and matters of precedent have to be settled over and over again by higher courts. It is not clear what would happen if a higher court finds a convicted legislator not guilty later; he may go back, but how would his exile be compensated for?

Letting a legislator’s career depend on the order of the lower courts could potentially introduce greater arbitrariness and unfairness into the system. There are many unresolved issues here which will have to be clarified in due course.

The rulings, which can lead to several by-elections and cast into disarray electoral mathematics, have caused disquiet among the political class with most of them refraining from voicing their misgivings for fear of being seen as opposing “de-criminalisation” of politics.

Yet the fact that a cleansing of the political system was long overdue cannot be denied. This might be a signal to political parties themselves to develop their own internal checks.

The Supreme Court has only made an effort to check the creep of criminality in the legislatures as there has been progressive erosion of public trust of politicians, reinforced by the widespread belief that nothing will set right the political system in control of corrupt politicians. Amidst this cynicism, the Supreme Court’s judgment is a beacon of hope. The right way forward is surely for the top court to devise and enforce procedures that ensure quick, time-bound justice.