The campaign for decriminalisation of politics is high on the national agenda. The role of judiciary and civil society in highlighting the menace of criminalisation and ways to curb the trend has been historic. The order of the Hon’ble Supreme Court on March 10, 2014, has very long range impact in terms of remedy. The bench headed by Justice R M Lodha of Hon’ble Supreme Court has ordered for expediting the proceedings against sitting MPs and MLAs in criminal cases and has further set a deadline for trial court to complete the hearing of the cases within a year of framing of charges.
It has further provided that the trial court needs to give explanation to the Chief Justice of the respective High Court if the trial is not completed within a year. The bench observed that the proceedings should be conducted on a day-to-day basis in order to decide the case within the prescribed time limit. If effectively implemented, this order has far-reaching consequences in cleansing the politics of the country. First, it would deter the criminals from seeking tickets as this would expose them to the prescribed limit of one year for the judicial verdict on the charges.
Secondly, the political parties who are sensitive to the number game in terms of capturing power would shy away from taking a risk of giving tickets to candidates with criminal background as any conviction of sitting MLA/MP would result in vacancy in the State Assembly and in the Parliament as the case may be which could directly impact the tenuous majority of the ruling party.
The judgment has come at a very opportune time as the parties are actively engaged in selecting candidates for forthcoming elections to Parliament and a few State Assemblies.
The Public Interest Litigation was filed by an NGO, Public Interest Foundation, in 2010-11. This PIL was admitted on grounds that the entry of criminals amounts to coercion in the electoral process and the free exercise of vote and ultimate choice is compromised. The petition made four prayers. First, it sought relief for the issuance of guidelines to ensure that those charges with serious criminal offences are disqualified to contest the elections to parliament and state legislature. Second prayer was for laying down six months’ time for judicial determination of the chargesheet by the competent court. Thirdly, direction to the government for enacting appropriate legislation so as to debar those charged with serious criminal offences contesting elections and lastly, declare the provisions of section 8(4) of the Representation of People Act, 1951 as unconstitutional.
The interested parties, i.e., the Election Commission of India and the Union government, were given due notice by the apex court. Fortunately, the Election Commission concurred with the prayer made in the PIL. However, the Union of India did not play ball with the campaign against decriminalisation and raised preliminary objection that the prayer falls in the domain of parliamentary legislation as policy matter and cannot be heard by the Hon’ble Supreme Court. However, the bench of the apex court was sensitive to the cause and sought the recommendations of the Law Commission on the issue of disqualification once the chargesheet is framed and the penalty under section 125A of RPA, 1951, in cases where a false affidavit is filed by the candidate. The Law Commission gave its recommendation to the apex court.
In order to appreciate the cancerous feature of our democracy, a few statistical details would be sufficient for a diagnostic conclusion. In the 15th Lok Sabha constituted in 2009, 162 Lok Sabha MPs out of a strength of 543, had serious criminal cases like murder, attempt to murder, kidnapping, robbery and rape. As per the ADR report, the average pendency of these criminal cases has been seven years.
Alarmingly, there were pending cases between 20-29 years against nine MPs. This would be sufficient to conclude that muscle and money power has played important role in the spread of the cancer and also in the obstruction of justice. In this regard, section 8(4) of the RPA, 1951, only added fuel to the fire. It perpetuated the continuity of even convicted legislators. This section provided that the convicted legislator would not be disqualified where revision/application has been preferred within three months from the date of conviction judgment.
The Hon’ble Supreme Court in its judgment of July 10, 2013, gave a death blow to the protection under section 8(4). In the case of Union of India vs. Lily Thomas, it declared the provisions of 8(4) as unconstitutional and debarred elected representatives from continuing in office upon conviction. The order of March 10, 2014, has to be appreciated in the background of the earlier judgment as it now sets a time limit on judicial determination of the chargesheeted representative. However, the battle is not finished yet.
The political parties may continue to field candidates with serious criminal cases because of their winnability factor. The gross misuse of muscle power and money can still prolong the time gap between investigation and the filing of the chargesheet. Thus, it would seriously compromise the intent of the judgment dated July 10, 2013, mentioned earlier and also the order of March 10, 2014.
The first prayer of the PIL is the panacea for curbing the entry of criminals in politics. It seeks that any person chargesheeted with serious and heinous offences attracting a sentence of five years or more should be debarred from contesting election.
This has been strongly recommended by Justice Verma Committee report on Amendments to Criminal Law (January 23, 2013). In this battle, the civil society must lead. Even the order of March 10, 2014, can only be effectively implemented if the watchful eyes of the civil society are able to keep track on the progress of the judicial proceedings.
N Misra is ex-Chairman, TRAI and Director, Public Interest Foundation;
Email: director@publicinterestfoundation.com