Supreme Court left it to Parliament to clean up politics, but Congress & BJP won’t do it
Opinion

Supreme Court left it to Parliament to clean up politics, but Congress & BJP won’t do it

History suggests major political parties, be it Congress or BJP, are on the same page over this contentious issue.

The Supreme Court of India |

The Supreme Court of India | Manisha Mondal/ThePrint

History suggests major political parties, be it Congress or BJP, are on the same page over this contentious issue.

The Supreme Court has refused to “cross the Lakshman Rekha” by not issuing any direction to bar politicians facing serious criminal charges like rape and murder from contesting elections to Parliament.

It has left it to Parliament to legislate on the issue, which history suggests isn’t likely to happen anytime soon.


Also read: No bar on criminal MPs, MLAs: Missed chance for SC or right to leave it to Parliament?


In 2002, the Supreme Court judgment made it mandatory for candidates running for Parliament and state assembly elections to furnish information on criminal cases at least six months before the filing of nomination. This was in cases where the offence is punishable with imprisonment for two years or more and where charges have been framed or the court has taken cognisance of the FIR.

The BJP-led NDA government under Atal Bihari Vajpayee first issued an ordinance and later got Parliament to pass amendments aimed at negating the SC judgment.

The amended Section 33B of the Representation of People Act read: “Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”

So much for transparency and making voters aware of the antecedents of the candidate!

This is the opening paragraph of the judgment penned by former Chief Justice of India Dipak Misra last week in the Public Interest Foundation versus Union of India case:

“The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world’s largest democracy, has seen a steady increase in the level of criminalisation that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalisation of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country.”

Strong words, indeed.


Also read: Nearly one in three MPs embroiled in criminal cases, data shows


But, the bench issued a slew of directions. These include asking candidates contesting elections to declare their criminal antecedents – ironically that is already a mandatory requirement since 2003, following another judgment of the Supreme Court – and telling political parties to give wide publicity to the list of their respective nominees with charges against them. And, it left it to Parliament to “take it upon itself to cure the malignancy”.

“A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream,” the bench stressed, underling, “it is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation.”

However, in trusting the MPs to do this, the court may have acted too naïvely.

Despite recommendations by the Law Commission of India as far back as 1999 and court rulings, successive governments and Parliament have failed to take firm action in this matter.

In May 2002, a three-judge bench of the Supreme Court headed by M.B Shah accepted that “it is not possible for this court to give any directions for amending the Act or the statutory rules” and that “it is for the Parliament to amend the Act and the Rules”. But, it also underlined the settled law that said: “In case when the Act or rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted”.

Unfortunately, the five-judge bench headed by CJI Misra in its 25 May judgment has overruled the view of the three-judge bench. The CJI Misra-led bench held that “directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalisation in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible.”

Here’s why it is such a serious issue.

A report filed by my colleague Simrin Sirur on the day the Supreme Court verdict was announced shows that nearly 33 per cent of the Lok Sabha MPs and 22 per cent from the Rajya Sabha are named in criminal cases.

Whatever little has been done on the issue of de-criminalising politics has been achieved mainly through judicial pronouncements.

It must be recalled that the response of the Congress-led UPA government to the SC order on disqualifying convicted MPs and MLAs was no better. Manmohan Singh government issued an ordinance to negate the judgment.

After Rahul Gandhi, who was the vice president of the Congress at that time, publicly ripped the ordinance apart, describing it as “nonsense” and something that should be “torn and thrown out”, the government developed cold feet and chose not to take it to Parliament for further action.

But, it was an open secret that all major parties, including the opposition BJP, were with the government on the need to negate the Supreme Court’s ruling.

Parliament’s view

The various department-related standing committees of Parliament, which draw members from across the political spectrum, are often a good indicator of the stand our political parties take on various contentious issues.

In 2007, the standing committee on law and justice, while going into the recommendation of the Election Commission on this issue, said, “The arguments against the proposal of the Election Commission are overwhelming. As stated in the foregoing paras, the courts frame charges even when they are conscious that the case is ultimately bound to fail”.


Also read: Supreme Court asks Parliament to frame law to weed out crime from politics


The panel also cited the Anglo-Saxon law, which says that a person is innocent till the offence is proved by the prosecution beyond all reasonable doubt.

“Therefore the committee is unable to appreciate the proposal made by the Election Commission to disqualify a person who is facing the charge i.e. at the entry points and at the stage of framing of charges under section 228 of CrPC,” the report said.