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Judicial Anguish

Tuktuk Ghosh |

Judicial activism was definitely not the mantra on 25 September when the five-judge Constitution Bench of the Supreme Court, headed by Chief Justice Dipak Misra ruled on a batch of petitions and applications filed by the NGO, Public Interest Foundation, former Chief Election Commissioner, J M Lyngdoh, Delhi BJP leader and lawyer, Ashwini Upadhyay and others seeking directions to the Election Commission of India to disqualify from polls those candidates against whom charges had been framed in criminal cases.

It was judicial anguish, instead, articulated with the characteristic ~ and somewhat quaint ~ lyricism of the CJI that was the presiding dominant all the way through in the 100-page plus unanimous verdict, at the rising criminalisation of the country’s polity. The situation was accurately portrayed as extremely disastrous, lamentable and unsettling, with a “propensity to send shivers down the spine of a constitutional democracy”.

It asserted that “substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.”

An era of “immaculate, spotless, unsullied and virtuous constitutional democracy “was the stated goal for the top Court, however naïve, unplugged from reality and incomprehensible that may sound to ordinary citizens.

More importantly, the logical question that flows from both the unalloyed anguish on where we find ourselves today and the conjured up surreal utopia to replace it, is whether the consequential recommendations and directions stand a chance to deliver at all or in any substantial measure? The answer is clearly in the negative. It is wishful thinking more than anything else.

The much-crossed “Lakshman Rekha” of Constitutionally assigned roles of the Judiciary and the Legislature as also the presumption of innocence, which underpins the country’s criminal law are not convincing enough as rationalisations for the essentially play-it-safe, displease-nobody nature of the ruling.

Parliament has been asked by the Supreme Court to enact a strong law before the malignancy of criminalisation of politics becomes fatal for our democracy. It has flagged the eager expectation of the nation for this landmark legislation. Citizens ought not be left to stand by as “silent, deaf and mute spectators”.

To bring in a dollop of harsh reality, from information available in the public domain, the proportion of MPs and MLAs with serious criminal charges in the Lok Sabha, Rajya Sabha and State Assemblies presently, are 33, 22 and 33 per cent respectively. In Jharkhand, Bihar and Maharashtra Assemblies, the figures are a mind-boggling 49, 40 and 39 per cent respectively. Under the existing law, the Representation of People’s Act, candidates are barred from jumping into the electoral fray only after their conviction in a criminal case.

With many State elections and Parliamentary elections scheduled in the coming months there is no likelihood at all of this poignant advisory of the SC being heeded. In this connection, it is useful to pull out the masterly analysis of Milan Vaishnav, Senior Associate at the Carnegie Endowment for international Peace, Washington, DC, in When Crime Pays ~ Money and Muscle in Indian Politics (Harper Collins, 2017). He has argued that criminal politicians exist within an electoral marketplace.

As with any marketplace, the marketplace for criminal politicians comprises both supply (politicians) and demand (voters). While individuals with criminal reputations have long been associated with politics, amid a changing electoral environment in which uncertainty and competition have both intensified, over time they have moved from the periphery to centre-stage. Political parties have embraced and promoted candidates with criminal links, drawn to their deep pockets at a time when the cost of elections has exploded, and party organizations have atrophied.

Loophole-ridden campaign finance laws have been no match for the torrent of undocumented cash that those with criminal ties are able to marshal. And voters often have a rational incentive to back politicians who can use their criminality as a signal of their ability to do whatever it takes to protect the interests of their cultivated vote-banks. Many voters vote for politicians because of rather than despite their criminal reputations and antecedents. This is the much prized winnability quotient which gets all politicos into a massive swoon and provides a major high, pre-elections.

When the declared aspirations of political parties are to stay in power for five decades ~ not only five years ~ the electoral battles ahead will only be more bitter and ugly, not sanitized and scrubbed. We the people have waited for this mega sanitizer of a legislation since 1990. This was the Goswami Report on Electoral Reforms, followed by the NN Vohra Committee Report on the nexus amongst criminals, politicos and bureaucrats, of October 1993.

The 18th Report of the Parliamentary Standing Committee of the Rajya Sabha in March 2007 lamented that criminalisation of politics is the negation of democracy. The 244th Report of the Law Commission of India succinctly put it as, “instead of politicians having suspected links to criminal networks, as was the case earlier, it is persons with extensive criminal backgrounds now entering politics”.

The wait, this time around may well be endless as Parliament cannot be held to account on this score, there being no timeline laid down in the apex court’s ruling for compliance.

Yet again there is display of touching hope in “informed choice”. The presumption is that the electorate votes for criminals because it is kept in the dark. Forms suitably designed by the much-harried Election Commission of India ~ which are not innovations really ~ are now to shout out loud about dark rings encircling candidates.

Tainted candidates are also mandated to “advertise” their criminality three times over, possibly including these in the permissible expenditure cap. It stretches credulity wafer thin to accept that this is going to lead to a large-scale boycott ~ a NOTA in a different avatar ~ of the criminals.

So, while forms will be filled out in bold letters as ordered, fake newspapers and electronic media outlets will spring up to meet what will be reduced to enhanced layers of procedural formalities, criminals will continue to swashbuckle their way to the sanctum sanctorum of our democracy and ravage it ruthlessly. It is a disappointing reflection on the much-touted governance-efficacy of the day that despite the Supreme Court’s 14 December 2017 directive to set up 12 Special Courts to try 3816 criminal cases against 1765 lawmakers, there has been only snail’s pace follow-up.

Inextricably conjoined as they have now become, crime and politics are being told to self-destruct through a yet unknown legislative explosive device. To be in denial of the utterly dim prospects of such a Mission-Impossible is disastrous.

It is not a turf-tussle between the Judiciary and Legislature as the veteran Attorney General, K K Venugopal, has skillfully deflected it to appear. It is also not an about ill-informed electorate or gullible political parties in the world’s most vibrant democracy, who just need to be bombarded with gory details of candidates. It is about a lost opportunity, where, for a change, judicial activism was sorely missed.

The writer, a retired IAS officer, comments on governance issues.