When the “lawbreakers” become “lawmakers” !!!

“Corruption, a ‘noun’ when assumes all the characteristics of a Verb’, becomes self-infective and also develops resistance to antibiotics. In such a situation the disguised protagonist never puts a Hamletian question-“to be or not to be”-but marches ahead with perverted proclivity-sans concern, sans care for collective interest, and irrefragably without conscience. In a way, corruption becomes a national economic terror.” (Yogendra Kumar Jaiswal and others v. State of Bihar and others(2016) 3 SCC 183)

In the Apex Court today on 25.09.2018, the Constitution Bench comprising of Hon’ble Chief Justice Dipak Misra, Hon’ble Justice Rohinton Fali Nariman, Hon’ble Justice A.M. Khanwilkar, Hon’ble Justice Dr. D.Y. Chandrachud and Hon’ble Justice Indu Malhotra delivered its verdict on the matter of decriminalisation of politics. The issue that emerged was whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by the Parliament under Article 102(e). Ergo, The Constitution Bench urged the legislature to consider framing laws to ensure that the political system of the nation is decriminalised. The Court expressed that as the judicial arm cannot usurp the power which it does not have, the court is not empowered to make any laws in this context. The Constitution Bench noted that though the court cannot legislate but it is empowered to issue guidelines and directions for rigorous implementations.

The Constitution Bench of the Hon’ble Supreme Court, among other things observed that:

The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world’s largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country. (Para 2)

On perusal of Article 102 and Article 191 of the Constitution its crystal clear that as regards disqualification for being chosen as a member of either House of Parliament and similarly disqualification for being chosen or for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be made by the Parliament.  (Para 7)

The Parliament has the exclusive legislative power to lay down disqualification for membership. (Para 7)

In the beginning of the era of constitutional democracy, serious concerns were expressed with regard to the people who are going to be elected. (Para 25)

An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising of a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy. (Para 26)

Criminalization of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the said attacks shook the entire Nation and as a result of the outcry, a Commission was constituted to study the problem of criminalization of politics and the nexus among criminals, politicians and bureaucrats in India. The report of the Committee, Vohra (Committee) Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including the CBI, IB, R&AW, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament. (Para 28)

The Court does not intend to remain oblivious to the issue of criminalisation of politics. (Para 109)

(Para 116) Following directions were issued:

(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
(iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. The term “wide publicity” ,  means that the same shall be done at least thrice after filing of the nomination papers.

These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by the Supreme Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―we shall be governed no better than we deserve, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy. (Para 117)

The aforesaid directions have been issued with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. 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. (Para 118)

The Supreme Court was sure that the law making wing of the democracy of this country will take it upon itself to cure the malignancy. It was said so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy.  (Para 119)

Copy of Judgement: Judgement 25-Sep-2018

-Tushar Kaushik

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