The co-existence of widespread crime and impropriety alongside free and fair democratic elections is the most curious aspect of Indian democracy. This typifies the paradox of a stable democracy with inherent structural defects in the system. Since the onset of the Indian Republic, the fear of a nexus between crime and politics was widely expressed and apprehended though the nature of nexus has undergone a sea change in recent times.
A plethora of committee reports including the Vohra Committee Report (1993) and the National Commission to Review the Working of the Constitution (NCRWC) (2002) have underlined the need to break such a nexus. Recently, the Supreme Court sought to capture the significant part of the real-world story, by seeking a response from the Union Government on the status of criminal cases pending against ministers and law-breakers turned law makers. The court recommended setting up fast-track courts to deal with the cases. This is unlikely to become a potent strategy sans improved governance and transparency in the system.
Purity and sanctity of electoral process is sine qua non for a sound system of governance. The creation of special courts for speedy trial of corruption, electoral and financial crime related cases may be hailed as a timely intervention from the apex Court to check the electoral incentives taken by the law makers from such crimes. The entire population believes and strongly acknowledges that politicians with criminal backgrounds are unfit to govern us. Their constant engagement with corruption tends to infect the bureaucracy and the police as well.
The rationale behind such a move is that the longer the time taken by the slow-paced judiciary to conclude such cases, the more will be the chances of manipulating the system to their advantage. The judiciary has made bold attempts to curb the menace of criminalisation of politics through several seminal judgments and directions to different stake holders for reform of the electoral system.
It is often argued the self-regulation is the best form of regulation. But sadly, there is a minimum or even an absence of self-regulation and restraint among political parties. Hence, they tend to give tickets to politicians having criminal records. Nearly 1,600 MPs and MLAs are facing criminal charges. They make up at least one third of our law makers facing serious criminal charges like murder, attempt to murder, communal disharmony, kidnapping, crimes against women, etc. which is evident from their self-declared affidavits with the Election Commission.
According to media reports, a large percentage of candidates with serious criminal charges actually win elections. While only 12 per cent of candidates with a “clean” record win on average, 23 per cent of candidates with some kind of criminal record win, and more alarmingly, 23 per cent of those with serious criminal charges win. Unfortunately, they form an integral part of the Indian legislative process and decide the fate of our citizens. Though we often lament about depleting political morality, political arithmetic often steals the show undermining all virtues and values.
Electoral reform with respect to decriminalising the election process is like a hornet’s nest and no political party wants to touch it. The Election Commission is vigorously pursuing electoral reforms which includes decriminalisation of politics, making cases of bribery a cognizable offence, prohibition of paid news, regulating advertisements strictly especially during 48 hours before the polls and the like. The sheer lack of political often acts as a stumbling block in fructifying the EC’s reformist passion. The existing law disqualifies politicians sentenced for a two-year jail term or more from contesting elections for six years from the date of release from prison. The Election Commission is proposing to introduce a lifetime ban on convicted politicians contesting elections which is facing political backlash.
Though the courts are well aware of the problem, politics is a holy cow which makes for slow involvement of our Courts in terms of zeal and motivation. But public interest dictates that such cases be expedited. It is often argued that Special courts would be the perfect remedy to address these issues, but it can also be achieved through regular trial courts by expediting matters. This would, in turn, save the infrastructure and manpower cost, if they are done in regular courts. There is a need to augment the capacity of the courts in terms of judges, prosecutors and investigators.
The apex Court also observed that the average number of cases each court in the country was dealing with currently was over 4,000 in subordinate judiciary, adding that unless a judicial officer deals exclusively with cases involving politicians, it would be difficult to complete these trials within a year. It is also equally imperative to clamp down on lawyers and erring judicial officers who deploy delaying tactics. The appointment of public prosecutors needs to be on apolitical lines in order to ensure a fair trial and the business of multifarious interim applications to stymie the trial needs to be discouraged at any cost.
Further, a host of legal and practical issues may crop of while implementing this idea. The government has to consider them when it presents its plan to the court and the court will have to find solutions for them. Undoubtedly, the prosecuting architecture and judicial infrastructure is crying out for improvement. Financial constraints should not be an excuse on the part of the Government of the day which does not find it difficult to pump in Rs 2 lakh crores to clean bank balance sheets or finds thousands of crore rupees to spend Swachh Bharat programme. This noble mission will require a fraction of what is spent on those purposes.
Enough water has flown down the river in the shape of rhetoric and pledges to follow probity and the Rule of Law in all walks of life. But this area seems to be the least involved aspect of our parliamentary debate and discussions. It is also equally disturbing that political parties continue giving tickets to candidates having criminal and tainted records and they often become the winning mascots of the parties. Therefore, the Government of the day must respond very positively to the judicial intervention and adopt legislative measures to see that a cleansing operation is undertaken. It is also equally important that the sectarian politics be discouraged as they often encourage criminalisation in long run.
A cleaning up of politics is essential for ensuring sound health and credibility of Indian democracy. The weaknesses in the system should not be fertile ground for the politician-bureaucrat-businessmen nexus. Unfortunately, so many previous efforts have ended in futility and the so-called accountability, probity and transparency has been given burials. The steps taken by the judiciary as part of strategies to curb corruption in public office and redeem its image have been consistent and are commendable. Hence, it is high time the apex Court’s dicta are translated into action and with no amount of scepticism.
The author is an Advocate, Supreme Court of India.