A missed chance to decriminalise politics

Afroz Alam & Yogesh Pratap Singh

Afroz Alam
Head, Department of Political Science, Maulana Azad National Urdu University

Yogesh Pratap Singh
Professor of law, NLU, Odisha
Deputy Registrar, Supreme Court

The recent judgment of the Supreme Court on decriminalisation of politics has proved elusive in allowing voters to determine political outcomes through representatives of unquestionable integrity. In fact, the growing confidence of the citizen on judiciary to cleanse the electoral system got shaken. 

Guarded assumptions 

We need to re-examine the assumptions offered to avoid the decriminalisation of politics. 

1. Criminal cases filed against the rival candidates may be politically motivated. 

2. Criminal cases may be framed even in the case of candidate's involvement in legitimate political agitations. 

3. The ruling regime may try to ensure electoral victory by engineering criminal charges against the opponent candidates. 

One cannot deny the merits in each of these assumptions. But the voter's right to govern themselves through  representatives of impeccable character shall also not be denied. The democracy's minimal promise to let its ordinary people rule has to be ensured by disallowing the growing trend of rule by the muscular men.  

The apex court should have carved a fine balance by giving serious thought to certain ‘safeguards’ already proposed by the Election Commission in 1998:

1. Candidates framed with heinous offences like murder, dacoity, rape, kidnaping or moral turpitude be barred from contesting elections. 

2. Such cases must have been registered before six months of the election. 

3. The court should have framed the charges punishable with minimum of five years. The Law Commission and the National Commission for Review of the Working of the Constitution made recommendations on the same lines.  

Rising political criminality 

The Association of Democratic Reforms (ADR) claims that 21 per cent of Lok Sabha MPs and 9 per cent from the Rajya Sabha are facing serious criminal cases while 22 per cent of the 4,083 MLAs analysed were in the same boat. 

The situation in the past has been equally grim. The quintessence of NN Vohra Committee Report (1993) is that ‘crime syndicates flourish under political patronage’. The report also observes: ‘Money power is used to develop a network of muscle-power which is also used by the politicians during elections.’ Four years later, the Supreme Court in Dinesh Trivedi v. Union of India (1997) had pointed out that criminalisation creates a concavity in the heart of democracy and can strangulate the purity of the system. Is the rise of criminality not leading to the decomposition of our democratic system? 

There is a fundamental flaw in the use of adversarial doctrine (a person is innocent until proven guilty) in the political context. A candidate charged with heinous crimes takes advantage of the ‘presumption of innocence’ to contest elections and take the oath of allegiance to the Constitution on being elected. It is nothing but a fraud on the Constitution. 

In the past, in Lily Thomas v. Union of India (2013), the Supreme Court strengthened the parameters of qualification by holding that any lawmaker awarded a minimum of two-year imprisonment loses membership of the House with immediate effect. 

Therefore, a legitimate expectation was created in Public Interest Foundation v. Union of India (2018), which pleaded that in larger public interest, a person accused of serious criminal charges and where charges have been framed, should be excluded from the electoral arena. However, the Bench expressed the unpragmatic hope that legislature in its wisdom will take appropriate measures if they require under Article 102(1)(e) and the judiciary should not cross the Lakshman rekha. The court found the language employed in Section 7(b) read with Sections 8 to 10A of the 1951 Act, unambiguous and complete and hence no intervention required from judicial side.

The leisurely justice, the long-drawn-out criminal proceedings hardly carries conviction. Even if it carries, human remembrance would have forgotten the gravity of crimes committed. The worrying fact is that Parliament has hardly done anything radical in this regard. In fact, Parliament diluted the ADR Judgment (2002) of Supreme Court requiring candidates to declare their criminal offences, assets and liabilities, and educational qualification. Nonetheless, the Supreme Court struck down the amendments and reiterated its earlier pronouncements. 

Reasonable classification

Our criminal courts deliver justice in slow motion. The legal procedures are complex. The dockets are hefty. The service of process is tardy. The completion of trial in many cases takes unusually long years. And then, there are appeals upon appeals and revisions and supervisory jurisdictions, baffling and baulking speedy termination of prosecution. The gradual loss of citizen’s confidence in the rule of law is conditioned by seeing the criminally tainted person holding  law-making/executing offices. The scepticism about ‘equality before the law’ turns into rhetoric like ‘show me the man and I will show you the law’. 

There is a need to ensure the faith of people not only in the rule of law but also in the fairness of the electoral system. To this end, the intelligible differentia of the classification i.e. creating exception to rule of ‘presumption of innocence’ in larger and legitimate public interest overwhelmingly sounds reasonable. It would be apposite to mention at this juncture that the framing of a charge is done after the allegations and evidence have judicially scrutinised and the competent court has applied its judicial mind. Hence, failure to push forward this clean-up undertaking upsets the rule of law and will deepen the crisis of our democracy. Let Parliament not be known as a representative body that provides a protective mantle to some of its tainted Caesars.