House must act, but the courts cannot absolve themselves
over elections to ensure that the agency’s rules have real teeth. Just as the Court allied with the EC in a landmark 2003 ruling to ensure that candidates must disclose their financial assets and criminal antecedents at the time of nomination, it must also ensure that basic disclosure norms are not violated with abandon.
However, this begs the question why voters vote for criminal candidates in the first place. Until and unless the state of governance improves, there will always be pockets of support for politicians who can use their criminal reputations as a signal of their credibility ‘to get things done.’ The depressing fact is that when the state cannot deliver basic services, justice, or security, voters are willing to contract with those who will. The court’s responsibility here is twofold. On the one hand, endemic delays in everyday justice help drive ordinary citizens into the embrace of tainted candidates willing to provide timely dispute resolution and contract enforcement. Furthermore, it is the judiciary’s laxity in processing cases against these politicians which allows them to ply their trade without fear of sanction. Because the judicial system operates at a snail’s pace, it can take decades for a criminal case to reach its logical conclusion— especially when one of the parties involved is an individual with considerable political and financial clout.
In December 2017, the Government announced it would set up 12 fast-track courts across the country to try criminal cases pending against sitting MPS and MLAS. Six months after a March 2018 deadline, 40 percent of pending cases have been transferred to special courts—of which judgments have been pronounced in just 136 (11 percent). Fast-track courts, the record reflects, quickly succumb to the broader pathologies of the country’s creaky justice system.
Parliament must take up the Court’s plea to debate whether debarring candidates accused— as opposed to convicted—of crimes is a step worth taking given the presumption of innocence. Fixing the rule of law by potentially violating it is a step not to be taken lightly. But the Court cannot absolve itself of the responsibility to address the deeper causes of the criminalization of politics, as opposed to merely chiseling away at the symptoms. In concluding its judgment, the Court urged Parliament to move swiftly because “voters cry for systematic sustenance of constitutionalism.” The Court failed to note that they are also crying out for the rule of law in practice to match up to the lofty ideals on paper.
(The writer is senior fellow and director of the South Asia Program at the Carnegie Endowment for International Peace. He is the author of ‘When Crime Pays: Money and Muscle in Indian Politics’ Harpercollins, 2017).