Decriminalising politics: Supreme Court makes another strike; ECI, others must do their bit

By: |
August 12, 2021 5:00 AM

The SC forbidding governments from dropping cases against sitting and former lawmakers without approval from the High Court is a step forward in cleaning up politics.

The top court has been hearing cases through video-conferencing since March last year due to the COVID-19 pandemic and several bar bodies and lawyers have been demanding that physical hearings should resume immediately.The top court has been hearing cases through video-conferencing since March last year due to the COVID-19 pandemic and several bar bodies and lawyers have been demanding that physical hearings should resume immediately.

The Supreme Court, on Tuesday, penalised eight mainline political parties for violating its order last year to widely publicise the details of candidates facing criminal charges whom they fielded in different elections. It, however, took a “lenient view”—the quantum of penalties slapped wasn’t much—since the directive was relatively new and this was the first such instance of violation. The apex court had earlier laid down a stringent disclosure regime, including making it compulsory for parties to explain why a candidate with criminal antecedents was fielded, in a bid to rid politics of rising criminalisation. The court, last month, had rued that the legislature would never feel the compulsion to clean up politics; this is evident in the rising presence of lawmakers facing criminal cases in different legislative bodies, including Parliament. Now, it has said that nation was losing patience and appealed to lawmakers to weed out “the malignancy of criminalisation of politics”.

The SC forbidding governments from dropping cases against sitting and former lawmakers without approval from the High Court is a step forward in cleaning up politics. It will stop abuse of Section 321 of the Criminal Procedure Code, that allows the prosecution to withdraw cases against an accused. There have been many examples of this, some as egregious as the Yogi Adityanath-led government in Uttar Pradesh withdrawing cases against Yogi Adityanath and other ruling-party lawmakers in 2017. And, just days later, the state government introduced a piece of legislation that created the grounds for withdrawing a claimed total of 20,000 ‘politically motivated’ cases. In July 2019, the government ordered the withdrawal of 75 cases concerning the 2013 Muzzafarnagar riots, that left up to 400, including many allegedly politically-affiliated persons, off the hook. The SC gave retrospective effect (cases dating back to September 2020) to its latest order, but this still spares the UP government’s abuse of power.

This newspaper maintains that the SC alone can’t be taking up the cudgels on behalf of the voter when it comes to ending the crime-politics symbiosis—while it directed, in 2014, that trials in criminal cases against politicians be concluded within a year of commencing, this hasn’t happened even with dedicated fast-track courts. The poll regulator, the voter, and most important, the political parties, all have a major role to play. To that end, while the SC ruled that the Election Commission of India was not in contempt of its order for failing to get it enforced, the ECI must not be timid, especially when there are legal provisions enabling it.

While the ECI had ordered mandatory disclosures on various media, there seems to have been no amendment to the Election Symbol Order 1968 or the Model Code of Conduct to reflect this. Under Paragraph 16A of the 1968 Order, the Commission is empowered to suspend or withdraw recognition of a political party for failure to follow its lawful directions and instructions. The ECI last month requested the SC to clarify on its power to de-recognise political parties, though experts maintain the ECI has many powers to get parties to toe the line. The SC has refused to do this, saying it won’t step in to the legislative arena. But, without all stakeholders playing their part, there will be little progress.

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