Special courts to decriminalise polity would be a game-changer

Earlier this week, the Supreme Court directed the Centre to constitute 12 special courts by March 1, 2018, to expeditiously try criminal cases involving politicians, giving the much-touted ‘Swachhta Abhiyan’ a new dimension. In an apparent bid to purge the Indian polity, the apex court has once again risen as the sheet-anchor, having realised that no political party appeared serious in taming the ‘neta’-criminal nexus.

The peril of conviction and impending disqualification will serve as an effective deterrent for political parties not to field ticket-seekers who are in direct conflict with the law. The NDA government, which stormed to power in 2014 riding on the anti-corruption sentiment, must now respond positively to the judicial initiative and adopt a legislative module to disinfect the electoral malaise in the country.

WHY ARE SPECIAL COURTS NEEDED?

When it was pointed out that nearly one-third of lawmakers (1,581 MLAs and MPs) faced criminal cases at the time of filing nominations to the 2014 Lok Sabha elections, a bench of justices Ranjan Gogoi and Navin Sinha fumed and asked the additional attorney general, “How many of these cases have been disposed of within the time frame of one year as envisaged by this court by order dated March 10, 2014? How many of these cases have ended in acquittal or conviction?”

The court was hearing the petition of BJP leader Ashwani Upadhyay in which he had sought lifetime ban on convicted politicians.

Underlining the need for the special courts, the apex court referred to the workload of trial courts across the country. At any point of time, each court is handling as many as 4,200 cases, which are more than optimal.

A GAME-CHANGER

The Supreme Court’s mandamus to constitute 12 special courts can be a game-changer in sanitising the political milieu where political parties tend to pick the ‘winnable’ candidates with greater resources: monetary affluence and muscle power. Most moves to end the criminalisation of politics have come from the judiciary. Recall the quashing of a provision in the Representation of Peoples Act, 1951, which provided the convicted lawmakers an escape route to evade disqualification. The SC had passed a judgment in July 2013, banning politicians with criminal record from contesting elections. Eventually, the Parliament overturned it, allowing politicians who were detained in jail or had remained in custody to contest elections.

In the present case again, the apex court appeared resilient when it dumped the centre’s alibi that constituting special courts was the responsibility of the state governments. The courts are to be formed on the lines of fast track courts constituted earlier under the central scheme.

It is deplorable that those who have committed serious crimes such as murder and extortion continue to remain in office. Nowhere in the world are murderers, rapists and convicts given the right to contest elections and make laws, except in India. International laws are very strict on the need to regulate and monitor criminals.

However, Parliament is allowing these notorious lawbreakers to contest elections in the backdrop of our apex court categorically holding that though personal integrity was not irrelevant, but institutional integrity was the touchstone of public interest, while setting aside the appointment of the then chief vigilance commissioner PJ Thomas as non est (something that does not exist).

After observing the prevarication for years, the Supreme Court has directed the central government to “...immediately debar the convicted persons to contest elections and also those against whom charges of heinous crimes have been framed by a court of law.” Under the current law, no convicted person can stand for election. But an MP or MLA, if subsequently convicted of a crime, can continue in office till his appeal is finally decided (which can take decades) as long as the appeal is filed within 90 days of the conviction.

WILL CENTRE, STATE GOVTS BLINK?

The EC wants all candidates facing ‘court-framed charges’, which on conviction carry a sentence of more than five years, to be debarred from contesting elections. Only ‘conviction’ should no longer be necessary for debarring. But will the central government and state governments blink to jettison the tainted politicians?

Surprisingly, a 20-monthold proposal by the law ministry to amend the Representation of Peoples Act has been quietly buried. The law ministry’s draft covered criminal offences carrying jail terms of more than five years as well as corruption charges, provided the charge-sheet was filed against the candidate at least a year before the relevant election. The threat to disqualify criminallycharged candidates is a necessary first step. The SC must follow-up its observation to order the government to amend the 68-year-old act in tandem with the Election Commission’s recommendation. The EC lacks constitutional authority and cannot force change on the government without the SC’s decisive intervention.

Let us hope, the SC continues marshalling the government to end the ‘neta’-criminal nexus.

THOSE WHO HAVE COMMITTED SERIOUS CRIMES SUCH AS MURDER CONTINUE TO REMAIN IN OFFICE