Relevance: GS Paper II (Criminalization of Politics)
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Why has this issue cropped up?
The September 25 verdict of the Supreme Court on criminalization of politics left much to be desired.
What did the court say?
- The court’s verdict essentially passed on the responsibility to the EC itself.
- The court also said that it cannot play the role of Parliament.
Is Parliament playing its role properly?
- Parliament, regardless of the party of coalition in power, has not been playing its own legitimate role.
- According to Article 102(1) of the Constitution, Parliament is obliged to make a law on the matter. But if history is any indicator, there is a slim chance, if any, that legislative action will follow the Supreme Court judgment.
Perspective 1
- The court did not do the right thing
- The directions given by the Supreme Court are welcome but have some practical issues. For instance, the apex court has instructed political parties to put on their respective websites information on candidates having criminal antecedents. How many people are capable of accessing websites?
- Also, both the candidate and the political party are required to publicise the information. Why would they actively publicise anything that goes against their interests?
- Third, the EC is asked to publicise the candidates’ background. The EC already displays these details, given in the candidates’ affidavits, on its website. The only difference this time is that these details are to be given in bold. Any more advertising by the EC will create problems, like inviting allegations of subjectivity, bias and partiality.
Encouragement to criminals
- Section 8 of the Representation of the People Act, 1951, bans convicted politicians from contesting. However, those facing trial, no matter how serious the charges, are free to contest.
- In fact, political parties appear to be competing to field criminal candidates, as their ‘winnability’ is proven to be more.
- The past three Lok Sabhas have seen an increasing number of legislators with criminal background — 128 in 2004, 162 in 2009 and 184 in 2014.
- The EC proposal to bar candidates accused of an offence punishable with at least five years of imprisonment from contesting elections, after charges are framed against them by a court, has been opposed by many parties.
Why do political parties oppose EC plan to bar candidates?
The opposition is based on two grounds:
- ruling politicians will misuse this against the Opposition; and
- the law of the land assumes everyone to be innocent till proved guilty or convicted.
EC’s safeguards
The EC’s safeguards in this regard are crystal clear.
- First, all criminal cases will not invite a ban; only those concerned with heinous offences like rape, dacoity, murder and kidnapping will.
- Second, the case should be registered at least six months before the elections.
- Third, a court must have framed the charges.
Contesting elections: not a fundamental right
- Assertions regarding a candidate being “innocent until proven guilty” are debatable. After all, there are about 2.7 lakh prisoners in jails still under trial and hence innocent.
- Yet, they are denied fundamental rights like right to liberty, freedom of movement, freedom of occupation and right to dignity. Contesting elections is not even a fundamental but a statutory right.
Conclusion
The verdict has arrived as a huge disappointment when seen in the context of the need for untainted parliamentarians. Judicial activism saved this country many times when the executive and the legislature were not willing to do their job. We know from history that the legislature has not moved on this front. This was an activist measure from the judiciary that would have been welcome.
Perspective 2
The court did the right thing
- The Supreme Court has rightly rejected the temptation to disqualify candidates facing serious criminal charges from contesting elections.
- The court’s order is in line with the principles of natural justice and the separation of powers enshrined in our Constitution.
- The court ruled that any move to disqualify candidates charged with crimes (as opposed to those convicted) would require an amendment to the Representation of the People Act. That is the domain of the legislature and thus it is Parliament that should take action.
- Further, in terms of natural justice, disqualifying persons from contesting elections at the stage of framing of charges is a blatant violation of due process. It can easily lead to abuse, with politicians filing false cases in order to disqualify their opponents.
- The political class has already taken measures that will help clean up the system. For example, fast-track courts have recently been established to try cases involving politicians speedily.
- Remember, if a citizen is convicted of a crime, finality is not arrived at until all appeals are exhausted. But public officials are judged by a higher standard.
- To the extent that voters are ignorant of the candidates’ criminal antecedents, the court has mandated that such information be prominently displayed so that voters get a chance to make an “informed choice”.
Way forward
- If Parliament does not act, there are two ways to keep potential criminals out of the electoral arena:
- political parties can choose to not give tickets to aspirants charged with heinous crimes; and
- voters can reject such candidates at the polls.
- Public funding of elections will also enable cleaner candidates to reach the threshold of resources needed to out-compete their crooked and criminal competitors.
Conclusion
We must resist the temptation to treat all politicians as potential criminals. The Supreme Court has shown us the way with its recent pronouncement.
