The right to stand for elections is neither a divine nor a human right. It is not even a fundamental right as per the Constitution of India. Hence, the right to contest an election to become a people’s representative has some restrictions. For the Lok Sabha, you must be 25 years of age and for the Rajya Sabha the minimum age is 30. The disqualifications are prescribed in section 8 of the Representation of People Act, 1951. If you are convicted of certain crimes which attract a jail sentence of a minimum of two years, you cannot contest. This seems like a reasonable restriction to keep criminals out of parliament. But the wheels of justice move slowly. Conviction takes time, perhaps years, beyond the term of the Lok Sabha. The case may be caught in an endless upward spiral of appeals in higher courts. Since a person is innocent until proven guilty, the actual disqualification of a criminal ticket seeker may be rare, since convictions are rare. Thus, criminal elements in politics are increasing. For the past three Lok Sabhas, the number of elected members who have self-declared criminal cases have gone up from 124 in 2004, to 162 in 2009 and 182 in 2014. Thus, one in three lawmakers in Parliament have a criminal taint. Obviously these elected MP’s have not faced conviction for otherwise they would have been disqualified from standing. If you consider what the criminal charges are against these tainted MP’s, they range from breaking a curfew, accosting a government servant, unlawful street agitation to more serious crimes. If you just focus on serious crimes like murder, attempt to murder, rape, kidnapping, assault and extortion, that number, too, has been rising. In the present Lok Sabha, one in five has “serious” criminal charges pending against them.
The law to disqualify such seriously tainted individuals from contesting elections, can only be passed by parliament. In the absence of such a law, the court can step in, as if to fill a vacuum. The Election Commission has been writing to the government for the past twenty years, to initiate such a law to bar lawbreakers from entering parliament. But parliament has not moved an inch. No political party finds it important to move such a legislation. It is not in the EC’s powers to disqualify criminals. It is in such a context that this week’s verdict by the Supreme Court was disappointing. Responding to a public interest litigation asking for disqualification of criminally tainted candidates, the apex court has passed the buck back to parliament. It said disqualification is in the legislative domain. But unless prodded seriously, the lawmakers will not heed.
Their defence of inaction has been manifold. That a person is innocent until proven guilty. But surely the right to stand is not a fundamental right. Is it not possible for a country of a billion people to find a few thousand “clean” candidates? Why not ask people to clear their name in a court of law, and then step into the electoral fray? In the light of increasing criminality among elected representatives, we need such a strong dose from the court. For the sake of cleansing, it may be acceptable to “sacrifice” the rights of tainted candidates from standing for elections. The rights of millions of other Indians are trampled for lesser causes. The rights of lakhs of under-trials languishing in jail without any charges have been denied. The irony of the current law, is that when in police custody, a person cannot vote, but can stand for election, and indeed win. Political parties put up candidates on “winnability” at all cost, ignoring criminality. Of course, stopping criminals from coming on to the ballot is a “supply side” solution, and we need “demand side” measures as well. If people continue to vote for criminal candidates, we have a “demand side” problem. Voters need to understand the nexus between the corrupt or criminal politician and the decay in governance and provision of infrastructure and social services.
A second defence of inaction by lawmakers, is that candidates will face politically motivated, trumped up charges. This is because of the politics of vendetta. If we have become so cynical about the ease of manipulating police and magistrates to come up with false charges, we might as well give up on the idea of democracy. Besides, there is a safeguard, in that only charges filed at least six months before elections should be considered for disqualification. These charges are not merely police FIR’s but framed by a competent court.
The third defence of inaction, is that we can have fast track courts to dispose cases against elected lawmakers. Indeed, in one of his very first speeches in parliament, Prime Minister Modi gave such an assurance in 2014. But courts have not moved, and no special fast track courts have been set up. This is a separate matter as to why lawmakers, who enjoy countless privileges, should have the additional privilege of a fast track court, when the common man trudges along the slow winding road of justice.
Considering all of these realities, the apex court missed an opportunity to debar at least those facing serious criminal charges from contesting elections of parliament and State assemblies. This would either force political parties to seek cleaner candidates, or parliament would have been forced to overturn the apex court’s verdict. This, in turn, would have exposed their true intention of never acting on the issue of increasing criminality. Of course, the court has said, notwithstanding their denial to disqualify, the political parties should give wide publicity in case a tainted candidate is being put up. That is, they have to name and shame their own. The EC, too, is advised to single out the criminal candidates (perhaps with a red mark on the ballot paper?). The progress on cleansing politics is also a big part of Swachh Bharat, of which the Mahatma is the symbol. The voters, too, need to express their disgust by throwing out criminal candidates, since as of now the apex court has not disqualified them.
Ajit Ranade is an economist and Senior Fellow, Takshashila Institution.
(Syndicate: The Billion Press)