Decriminalisation of politics to face acid test of Constitutional Bench

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Illustration: Vikram Nongmaithem

The Supreme Court’s attempts to decriminalize politics last month was welcomed by almost all quarters of the public, which is tired of goondas taking over Parliament.

On 12 August, the government decided to challenge this judgment by preferring a review of two consecutive orders in this regard before a five-judge Constitutional Bench.

Legislators have also opined that the Parliament should have taken lead in this case and brought in legislation to cleanse politics.

Opposition party Biju Janata Dal MP, Baijayant Panda, said, “I would have preferred that we introduce such changes by legislation in Parliament rather than through judicial activism.”

The first judgment of 10 July struck down Section 8 (4) of the Representation of People’s Act, thus disqualifying convicted MPs/MLAs immediately upon conviction. Earlier, the parliamentary legislation allowed legislators to continue if their appeal was admitted in a court of law.

The second decision, delivered on 11 July, disqualified anyone from contesting elections if they were in custody or undergoing a sentence at the time of election.

A number of jurists, including former chief justices of India, gave their views on the first judgment supporting it. So, did several politicians who wanted a cleaner system. But the government did not take it well and hence the review petitions to the constitutional bench, especially this being an election year with four state assembly elections to be held this year and the general elections in the next.

This renews the importance of the issue and places it in public domain once again. Senior advocate Dushyant Dave said, “The judgments on de-criminalization will only ensure that criminal candidates cannot hide behind the law. Section 8(4) of the RPA 1951 has been the refuge of convicted political convicts. The doors of this refuge are closed. Only a constitutional amendment can open the doors. Unfortunately, if the political parties close ranks, the constitutional basis of the judgment will go. Each party should be made to explain why they promote criminals. The selection process has to be more open and the press more attacking in its exposure.”

Dave also said that good candidates are left out of the fray because of the criminal elements.
As a solution, he said that there should be amendments in the law based on the Law Commission Report that disqualification of a legislator should be effective once charges are framed against him.

“Harold Wilson had a nice phrase for an MP elected on a racist platform to treat him as a parliamentary leper. Unfortunately, though criminals under trial and convicts have no place in an electoral process no one wants to ostracize them,” he added.

Panda says that one of the most important ways to weed out criminal elements out of the system is to institute fast track courts for all classes of people’s representative including MLAs, MPs, Panchayat/Zilla Parishad.

“There are sometimes allegations or cases against political people which need to be adjudicated in court and this can only happen in a practical manner if there are fast track courts dedicated to expediting criminal cases against elected officials. In general, the BJD has supported fast track courts and the Odisha government has continued funding fast track courts for crimes against women and such, despite funding being discontinued from the Centre,” he said.

Panda said that Odisha also had criminal elements in its political parties during the 80s but that “over the course of the last decade or so, this has been reversed to a significant degree.”

In a recent interview with TEHELKA, former solicitor general of India, Gopal Subramaniam had pointed out that legislators almost never use the provision of Article 105 of the Constitution. This provision allows MPs of the ruling party to question the government on certain issues.

Panda said, “This is a very little known provision and most elected members probably don’t know about it. Almost all Indian political parties have concentrated powers at the top of the hierarchy and have functioned by diktat rather than through internal discussions. Because of the prevalent use of the whip in most discussions in Parliament and in Assemblies, elected members have become conditioned to following the party line. The overall culture needs to be reformed and no isolated clause is going to serve the purpose.”

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