12 October 2018
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
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GS II- JUDICIARY
Q1. Discuss the pros and cons of the recent judgment of the Supreme Court on criminalization of politics.
- 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.
- 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. Thus, politicians, the moment they are convicted and sentenced to more than two years in jail by a lower court, lose their seats and are debarred from contesting for some period. This higher standard prevails despite the possibility of convictions being overturned and political careers being unjustly derailed.
- 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.
- However, while seeking to decriminalise politics, we must acknowledge the inherent structural issues that need to be addressed. We need to face up to the costs of democracy and allow candidates and parties to raise and spend money legally and transparently. In an attempt to limit even legitimate election expenditure, our system actually penalises the sainted and rewards the tainted. A measure of public funding of elections will also enable cleaner candidates to reach the threshold of resources needed to out-compete their crooked and criminal competitors.
- We must resist the temptation to treat all politicians as potential criminals. The Supreme Court has shown us the way with its recent pronouncement.
- The verdict of the Supreme Court on criminalisation of politics left much to be desired. 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. But 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.
- 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.
- 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.
- 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. 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.
- 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.
- Further, assertions regarding a candidate being “innocent until proven guilty” are debatable.
- 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.