The Supreme Court’s attempt to “de-criminalise” electoral politics in India bring “Don Quixote” to mind. Since its judgement in the Association for Democratic Reforms case in 2002, to make assets and criminal antecedents of candidates public, the Supreme Court has only seen the number of candidates with criminal records increase year on year. Yet, like the Ingenious Gentleman of La Mancha, the Court has once again jumped on the saddle, lowered its lance and began yet another futile charge at its favourite windmill.
The latest order issued by a bench headed by Justice Rohinton F Nariman is in a contempt petition demanding compliance with the directions of Constitution Bench in Public Interest Foundation v Union of India (2018) which directed political parties to give wide publicity to the criminal antecedents of the candidates put up in elections. Justice Nariman’s order goes even further demanding, among other things, that political parties even give reasons as to why they selected candidates with criminal cases pending against them.
Legal Issue with the Order, And a Topping of Hypocrisy
This order raises many questions, legal and otherwise. Legally, a two judge bench cannot effectively modify and expand a constitution bench judgement in issuing directions in a contempt petition. It is doubtful if the directions can be considered binding. Only Article 142 of the Constitution is invoked as a magic wand to dispel any concerns about legality—but coming from a judge who was so recently incensed by procedural impropriety when his own judgement was questioned by his fellow judges, it does carry with it a strong whiff of hypocrisy as well.
Even assuming the directions are valid in some way, there’s another level of hypocrisy.
When it demands that political parties should disclose reasons for selecting candidates with criminal antecedents, one can’t help but bring to the fore the court’s own shoddy record on transparency in appointment of judges.
Even the limited transparency in the last two years - of collegium resolutions being uploaded on its website - hasbeen done away with in the last few months. Moreover, the Supreme Court website no longer carries asset declarations of all judges while the court mandates that every single candidate for State Assembly and Parliamentary elections declare their and their dependents’ assets.
How to Deal with Criminalisation in Politics
The problems with the Court’s order notwithstanding, there’s a need to untangle the discourse on “criminalisation in politics”. Milan Vaishnav’s book “When Crime Pays” is an excellent starting point. Voters, as he points out, are not entirely ignorant of the criminal antecedents of candidates. They sometimes see it as a positive—as someone from their community who can help them negotiate and manage the state machinery for their benefit.
Voters, unlike the Supreme Court, are also fully aware of the police acting less in accordance with the law and more in accordance with the whims of the ruling party.
They are fully capable of understanding the difference between politically motivated cases and run-of-the-mill criminality.
At the heart of the discourse about “criminals in politics” is an unstated presumption of what criminality really means—that a criminal is anyone against whom any complaint or FIR is lodged in any police station across the country. If that were to be so, the next Chief Justice of India, Justice NV Ramana should also be considered a “criminal” but as this judgement points out, some public officials are more equal than others.
Nuanced Understanding of ‘Criminals’ in Politics Needed
The Supreme Court’s repeated failures notwithstanding, there’s a need to rethink the legal framework around criminals and politics. Today, only those representatives convicted of serious crimes are disqualified under the Representation of the Peoples Act, 1951. The Supreme Court’s judgement in Lily Thomas v Union of India that such disqualification shall be immediate has at least seen some major representatives lose their seats upon conviction. But when compared with the routine abuse of power that politicians indulge in to get cases against them closed, they stand out as the few exceptions to the larger rule.
The Law Commission’s report 244th Report on Electoral Disqualification also offers a nuanced take of what can be done to address the issue but its recommendations have not been acted upon. The Law Commission had recommended that rather than wait for conviction, an MP or MLA should be disqualified the moment charges are framed against her by a court.
But the Law Commission had also recommended safeguards to ensure that this could not be misused, e.g., such disqualification would only be for cases with imprisonment of more than five years, would not take effect for any charges framed one year prior to elections, et al. To this end, the Law Commission had recommended amendments to the RP Act, 1951 but they have so far been ignored by successive governments.
Delay in Trials Against Politicians
The Law Commission’s report also acknowledges the delay in completing trials against MPs/MLAs—something which the Supreme Court took cognizance of in an earlier order in Public Interest Foundation in an attempt to fast-track cases concerning politicians. However, it’s unclear if it has had any effect on the ground given that the new approach seems to be for state governments to simply withdraw cases en masse.
If measured simply by the metric of number of elected MLAs/MPs with criminal cases against them, the Supreme Court’s attempts to rid electoral politics of “criminals” have been a resounding failure. By refusing to understand the true underlying causes and refusing to acknowledge the judicial system’s failures in this process, the court’s approach amounts to little more than flogging the dead horse.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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