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

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Throwing the ball in Parliament’s court, the Supreme Court Tuesday said that amendments to law barring MPs and MLAs with criminal charges from contesting elections should be decided by legislature, and not judiciary.

ThePrint asks- No bar on criminal MPs, MLAs: Missed chance for SC or right to leave it to Parliament?


Indian voters prefer criminal candidates, which shows failure of legislature and judiciary

Alok Prasanna Kumar
Senior Resident Fellow at Vidhi Centre for Legal Policy

The Supreme Court judgment is a missed opportunity. While it is absolutely right in holding that the court cannot add new bases for the disqualification of legislators (and it has to be Parliament which does this), it has also completely missed the real nature of the problem before it. As Milan Vaishnav and other researchers have shown, voters actually seem to prefer candidates with criminal records, so long as they are from the same caste or community, and are able to show that they can “get things done”. What this tells us is that the average voter does not expect the Indian state to act neutrally and in accordance with the law. They don’t expect the police to take down their complaints, they don’t expect entitlements to reach them in time and they don’t expect grievances to be addressed by the judiciary.

Here was an opportunity for the court to truly understand the source of the problem of criminalisation of politics, but nothing in the judgment suggests that they have. In its essence, this is a symptom of the failure of the judiciary and the police to function effectively, efficiently and impartially. At least on the matter of judicial reform, here was an opportunity for the court to offer a mea culpa and find ways to honestly address the problem of delays in trial. It does no such thing. Nothing new is said here that isn’t covered in the Law Commission’s report analysing the judiciary’s slowness in curbing criminals in politics. Forget trial courts, the Supreme Court has not even examined the fact that it has taken so long to decide politicians’ cases in appeal. Navjot Sidhu’s appeal took ten years to decide.

Instead, the court passes utterly pointless and vague directions which are going to be freely ignored. The first three simply amount to saying “follow the law” and the last two are simply unenforceable. The judgment is, at best, “full of sound and fury, signifying nothing”.


SC reaffirmed if law has to be amended, it has to be done in Parliament

P.D.T Acharya
Former Lok Sabha Secretary

The Supreme Court cannot make a law, it can merely interpret it. The legislature decides the laws and the law clearly says that only MPs and MLAs who have been convicted can be disqualified. If the law is to be amended, it will have to be done in Parliament and this is something the SC has reaffirmed. Otherwise, the SC would go around making laws in many cases, and that isn’t something that our Constitution allows.

As far as my personal view is concerned, I strongly believe that people who have been chargesheeted should be left out of the political parties. Sure, we have a provision for disqualification on conviction. But we know all too well how rarely that happens. History tells us that conviction rates for politicians even in the heinous of crimes are incredibly low. This has to do with the kind and magnitude of power politicians wield. If a politician has committed a crime, they will know how to protect themselves.

Thus, the law should be amended. On the other hand, the justification of those who resist the amendment is that parties will use it to keep their key rivals outside the political arena. This too is a fair concern. Both the Law Commission as well as the Election Commission, however, had recommended these amendments years ago. Parliament should consider them seriously.


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Why should chargesheeted politicians remain in power when we don’t allow such civil servants to continue?

S.N. Shukla
Retd IAS officer & member, NGO Lok Prahari

I am deeply disappointed with the Supreme Court verdict. There was enough ground for the Supreme Court to intervene as it has in the past. Whenever the executive or the legislature fail to do their duty, the judiciary must step in if it is a matter of public interest. Twenty years after the Election Commission’s recommendation to amend the law, and four years after the Law Commission’s recommendation, what has Parliament done? The SC too has left this in the hands of the parties. The least the SC could do was direct the government to bring up the need for amendment in Parliament, so that they would be compelled to take it up.

The Manoj Narula vs Union of India case comes to mind, wherein Justice Kurian Joseph had opined that a person chargesheeted in the court of law is definitely in conflict with the court of law. Then can an oath taken by such an individual have any credibility whatsoever?

The Supreme Court had previously said that all politicians are government servants. If that is the case, then why should it be acceptable for chargesheeted politicians to remain in power when we don’t allow civil servants with charges against them to continue? A mockery has been made of the Parliament resolution taken in 1997 where they spoke of electoral reforms. What is worse is that by taking this decision, the Supreme Court bench has preempted smaller benches to take a different call.


Supreme Court should have strengthened Election Commission’s hands

Maj. Gen. Anil Verma (retd.)
Head, Association of Democratic Reforms

This is an extremely disappointing verdict by the Supreme Court. While they have directed media houses to publicise criminal antecedents of MPs and MLAs, I don’t think that will make much of a difference. This information is already available on the Election Commission’s site as well as the ADR site.

I understand that the Supreme Court cannot make a law, and that they have given an advisory to the Parliament. But how much will the Parliament listen to their advisory? Political parties are not serious about this matter. Historically, we have seen politicians with the maximum money and muscle power are more likely to win elections. As a result, they act as a boon for the party. The Supreme Court should have at least strengthened the hands of the Election Commission. But they didn’t do that either.


SC has not shirked duty but respected separation of powers between executive and judiciary

Apurva Vishwanath
Special correspondent, The Print

Electoral reforms in India have mostly been driven by two independent bodies -an activist judiciary and a constantly vigilant Election Commission. In leaving the decision of disqualifying politicians charged with criminal cases to Parliament, the Supreme Court has not shirked its responsibility but has respected the separation of powers between the executive and judiciary.

The populist thing to do would have been grandstanding with a lecture on probity and integrity in public life to disqualify candidates from contesting elections. But crossing over the Lakshman rekha for the judiciary would be risking its independence.

There are already both constitutional and statutory limitations on who can contest elections. The Supreme Court has rightly decided that while it can interpret these laws to decriminalise politics, it cannot introduce new offences in the garb of “guidelines”.

In any case, being named in a chargesheet is a very low threshold to determine criminality. The framing of charges is a preliminary step and cannot be considered due process for disqualification.

To trust that reforms to decriminalise politics will come from politicians themselves is of course naïve. Just like the judiciary crawls back every time conduct of judges is debated, Parliament too shows reluctance to clean its house. But in making disclosure norms stricter, the Supreme Court verdict actually puts this responsibility on citizens to make informed decisions.


By Fatima Khan, journalist at ThePrint. You can follow her on twitter @khanthefatima.

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2 COMMENTS

  1. Thankfully SC did the perfectly right thing. The ‘Separation of Power’ lays that Legislature is the right pillar to make law, SC is there to review the implementation of those. To the critiques of SC on this, I respectfully submit: please let us remain a democracy and not fall to a ‘jureacracy’. Just like you support the freedom of speech in spite of the instances of misuse by some individuals / newspapers, please defend people’s will collectively expressed in Parliament even if in individual cases the government has failed.

  2. I would agree with Ms Apurva Vishwanath. However, if for the next ten years, this matter remains in deep freeze and is then brought before the apex court, it might feel it is left with no choice but to – in a sense – legislate.

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