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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