Wednesday, July 10, 2013

SC order on MP/MLA disqualifications brilliant…..but with a few caveats

The SC ruled yesterday that Section 8(4) of the Representation of People’s Act (RPA) was “ultra vires” the Constitution. This section provided protection to those law makers who were already convicted by a court, but who had an appeal pending in a higher court. This is brilliant, and will hopefully reduce the scourge of criminalization of politics. But I do feel that the order could have been made stronger, and more fairer, if a few points had been kept in mind.

The first is that the order should have applied retrospectively, not just prospectively. Now I do know that in general, court orders apply prospectively only. And thus existing law makers cannot be affected by them. But a slight modification that the order could have incorporated is that convicted politicians could  continue only till their current term ended. Thus he/she would be disqualified from standing for elections again. In the absence of this caveat, the earlier lot seems to have escaped the order “for good” and for no reason at all.

The second caveat is that the order should have only applied if the conviction was by a High Court at the very minimum, and not by a lower court. The reason for this is that there is rampant corruption in the lower judiciary. A front page story in The Mint yesterday indicated that 45% of the people believe there is corruption in the judiciary. I am sure if the question had been framed specifically for the lower judiciary, the perception of corruption would have been even stronger. Anyone who has ever had anything to do with the lower judiciary knows this. Adjournments are granted endlessly to those who have influence. In many cases it is alleged that even judicial decisions are tainted by corruption (Prashant Bhushan – who I normally don’t trust – made this charge against some judge in some Varun Gandhi case last night). In contrast, the High Courts have a cleaner reputation (though not totally clean).

The third caveat is what the TOI has highlighted – that the speed of judicial trials must increase. But the TOI’s point has been made with a different purpose. The TOI has argued that if the speed were not increased, then many chargesheeted politicians would be able to escape the provisions of this order by delaying court proceedings for many years. This is a fair point, but the speed argument really cuts both ways.

Because a slow judicial process is also unfair to the one who has been convicted falsely by a corrupt lower court. It’s not fair that such convicted leaders should have to wait for decades for a higher court to reconsider the matter and clear their name. We tend to look at politicians as hoodlums, and so are happy to keep them out of power. But there are thousands of selfless politicians (I am sure the whole Aam Aadmi Party consideres its members to be just that!), and if they were denied entry to the portals of Parliament or the Assemblies simply because they have been convicted in a corrupt lower court, it would be a loss to the country. All politicians are not corrupt. And the SC should have kept that in mind.

The SC order is bound to have a salutory effect on politics. It will especially help contain the criminal element in our regional parties. The TOI reports that the Jharkhand Mukti Morcha has 68% convicts amongst its law makers. The SP is no better – with 48%. In the badlands of UP, Bihar and Jharkhand and many other states, the thugs usually make it to the assembly and Parliament. This order will surely put a stoppage to that. Even our national parties will have to clean up their act. The BJP has the honor of having 31% convicts as its law makers; the figure is lower at 20% for the Congress.

One last point. In the same spirit as the SC often berates politicians, it should also look inwards at its own rogue elements. The lower courts simply cannot afford to be seen as corrupt by so many. The SC gives us much joy because of its clean reputation (forget Shanti Bhushan’s outrageous claim about 8 past Chief Justices of India being corrupt). We consider it to be the protector of the nation – and the launderer of dirty political linen – in many ways. Why should the same not be said for the lower judiciary? How can ordinary citizens – who cannot reach the SC – get justice if the powerful wrap lower order judges around their fingers? By failing to clean up its own stables, the SC is itself guilty, in a way, of promoting corruption. It loses its moral authority to call others corrupt when it cannot, or does not, call its own corrupt.

The real truth is that if we can remove criminality from politics, we will also reduce corruption. The two are intertwined. The corrupt often resort to criminality to protect themselves. They bribe the cops, the prosecutors, the judges….to save their skins. They sometimes even commit murders to protect themselves. Keeping such people out of power is a must….and the SC order is one that must be appreciated.

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