Check taint to iron out flaws in our democracy

Former Chief Election Commissioner

SAME issue, another judgment, another year. The morning of February 13 began with the Supreme Court pronouncing its judgment on the criminalisation of politics following a contempt plea filed by BJP leader and determined advocate for electoral reforms, Ashwini Upadhyay. Just like in the past, the court voiced its worries on the unopposed shooting trend of criminalisation in politics.

The recent judgment is, more or less, an extension of the Supreme Court’s 2018 judgment, which ordered political parties to publish a nominated candidate’s pending criminal cases on their official websites within 48 hours of selection. The SC has now added local newspapers and social media to the list of mediums for publication. Moreover, the judgment brings with itself new additions that primarily seem groundbreaking — first, the political party must explain the reason for choosing a tainted candidate and second, failing to register compliance report on the same with the Election Commission of India within 72 hours or the ECI’s failure to implement the court order would be considered as contempt of court. The two directions put weight to the court’s earlier pronouncements on the matter.

The two-judge SC bench also called out the factor of ‘winnability’ the political parties often cite while nominating candidates with a criminal background. It prioritised merit and achievements, while underlining: ‘Winnability cannot be the only reason for selecting a candidate with criminal antecedents’. The argument of winnability seeks to put the onus of welcoming tainted leaders in the system on the voters!

This judgment, though a step forward, is a limited attempt to hold political parties, and, surprisingly, the Election Commission of India, answerable for their non-serious attitude towards this menace and ensure their honest commitment to cleanse India’s political sphere. It has a better chance at deterrence than the 2018 order which, despite compliance, proved to be as ineffective as the prominently displayed ‘smoking kills’ slogan on a cigarette box. Its ineffectiveness was out in open with the declaration of results for the 17th Lok Sabha elections where the number of MPs with pending criminal cases has ironically gone up — to 233 from 185 in 2014 and 162 in 2009.

Presently, the Lok Sabha hosts 159 members with declared serious criminal cases like murder and rape etc against them as compared to 112 and 76 members in 2014 and 2009, respectively. Even in the recently concluded Delhi Assembly elections, the number of legislators with declared criminal cases has increased to 43 from 24 in 2015, while the number of serious criminal cases has more than doubled. These figures clearly underline the increasing acceptance of tainted candidates in the political parties and the reluctance of Parliament to amend Section 8 of the Representation of the People Act, 1951, to include legislators with pending criminal cases, under the mandate granted in Article 102(1) of the Constitution.

The political parties constituting our legislature have opposed such amendments on two grounds— vendetta politics and the fundamental principle of criminal jurisprudence — innocent until proven guilty. For the former, the ECI has time and again put forward a very pragmatic safeguards:

n Only offences that have a minimum imprisonment of five years would invite a ban on contesting elections.

n The case should have been filed at least six months before elections.

n The charges must have been framed by the court.

An argument to which I have been trying to find an answer is why nearly 2.7 lakh undertrials, who have not yet been convicted and by that analogy are ‘innocent’, have been deprived of as many as four fundamental rights — liberty, freedom of movement, freedom of occupation and right to dignity — besides the right to vote. All this within the ambit of the existing laws. How is the right to contest which is not even a fundamental right considered so sacrosanct? Aren’t these double standards?

Instead of getting bogged down in the unending debate about ‘innocent till proved guilty’, how about the alternative route of fast-tracking the cases against politicians? In 2014, the SC had directed all subordinate courts to conclude the hearing of cases pending against legislators within a year and, if they fail to do so, report the same to the chief justices of the respective high courts. We have heard nothing about the compliance of this order.

The solution to criminalisation of politics has to come from the judiciary which has been the guardian angel of democracy. It has to be proactive. The current state of judicial paralysis is a reason why India scores only 0.57 out of 1 regarding ‘judicial independence’ in the Global State of Democracy Index. The country has also lost too much ground in the Democracy Index compiled by the Economist Intelligence Unit and finds itself at 51st rank, the steepest decline since 2006. If our executive, legislature and judiciary continue to downplay the threat that criminalisation poses to our democracy, it will not be surprising if the world’s largest democracy degenerates from ‘flawed’ to ‘hybrid in the dubious company of our bête noire, Pakistan.