The Supreme Court (SC) has asked how a convicted politician who, according to the Representation of the People Act, is barred from contesting in elections if the conviction carries a jail term of two years or more, can nevertheless head a political party and decide on which party-members can contest in elections. The apex court is hearing a petition seeking a ban on such politicians from holding party posts or floating a new party. The question the SC has raised is an important one since such puppeteering by convicted leaders goes against the spirit of the provision that bars convicted politicians from participating in elections and law-making and the larger objective of cleaning up politics in the country.
As per an analysis by the Association for Democratic Reforms (ADR), of 64 members of the Union council of ministers, 20 had criminal cases pending against them—11 had serious criminal cases against them, including attempt to murder, disturbing communal harmony and even electoral violations. Another ADR analysis, published on Monday, points out that of the 31 chief ministers in India, 11 have criminal cases pending against them, with eight facing serious criminal charges. It is possible that many of the charges against these lawmakers are likely to be politically motivated. However, in the case they are genuine, a conviction will merely prohibit one of these CMs or Union ministers from contesting in polls. They can still function through proxies. There have been numerous examples of this in the past—from former AIADMK chief, the late J Jayalalithaa, engaging the loyalty of party-member O Pannerselvam every time she was ordered into prison by the courts to RJD chief Lalu Prasad infamously anointing his wife Rabri Devi as chief minister of Bihar when he was arrested for his involvement in the fodder scam. Such political proxies erode the sanctity of lawmaking as they toe their leaders’ orders. Worse, proxies trying to extricate their leaders from getting convicted in the appellate courts would be a damaging subversion of the law and the spirit of democracy. Convicted in a teachers’ recruitment scam, former Haryana chief minister Om Prakash Chautala, and his son, Ajay Singh Chautala, hold the top posts in Indian National Lok Dal. The senior Chautala even campaigned for INLD before the Haryana Assembly polls in 2014—while he was out on bail on medical grounds. INLD is now the main opposition party in Haryana—so, if the Chautalas remain its leaders, it is likely that the main opposition party in one of India’s most prosperous states functions as its corrupt leaders want.
The law must be changed to bar convicted politicians from holding party posts and floating parties, but the focus has to be on fast-tracking trials involving lawmakers. The SC had said in May that all such cases should reach conclusion within a year of the beginning of trial, but this hasn’t happened. It has even talked of special courts for hearing cases against lawmakers, but such a move will come with a set of challenges that would be difficult to tide over. Scuttling investigations and waylaying prosecution at the appeals stage is easy for convicted politicians of heft if they continue to hold party posts and, therefore, can exert considerable influence over their fellow party members. Countering this requires them to be barred from holding party posts, at least for as long as the ban on contesting elections holds.