Verdict Corner: Towards decriminalisation of politics

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Published: November 26, 2015 12:45:12 AM

The Supreme Court has agreed to look into a PIL for electoral reform, seeking framing of code of conduct for decriminalisation, decommunalisation and eradication of corruption in politics, besides a lifetime ban on convicted persons from contesting elections, forming a political party and becoming party office bearers.

The Supreme Court has agreed to look into a PIL for electoral reform, seeking framing of code of conduct for decriminalisation, decommunalisation and eradication of corruption in politics, besides a lifetime ban on convicted persons from contesting elections, forming a political party and becoming party office bearers. The SC has asked the Centre to explain why convicts must not be debarred from contesting elections for life when a similar provision exists for public servants. The current law debars a person convicted for two or more years from contesting elections for a minimum of six and a maximum of ten years.

The petition, filed by BJP spokesperson and advocate Ashwini Upadhyay, stated that unlike public servants, “people’s representatives are totally immune from such deterrent penalties. Many convicted leaders involved in serious criminal and corruption cases formed their own political party destroying the entire fabric of democracy.”

According to him, despite recommendations by successive parliamentary committees and Election Commission laws, no substantial progress had been made on electoral reforms. It is impossible to achieve golden goals set out in the preamble of our Constitution without decriminalisation and decommunalisation of politics. These issues, besides being a bottleneck, hinder and stifle life out of any developmental agenda, he argued while seeking SC’s intervention.

Even the Law Commission, headed by Justice AP Shah, and Election Commission had suggested debarring of candidates from contesting elections if a competent court in respect to offences, punishable by imprisonment of five years or more, frames charges against the contesting candidate. The panel had recommended to the government last year that the Representation of the People Act be amended to provide for disqualification of a candidate the moment a court frames charges for serious offences.

Post the SC ruling last year, the UPA had tried to undo the damage through an ordinance to protect primarily RJD leader Lalu Prasad Yadav convicted in a fodder scam case. Yadav though is on bail granted by the SC on grounds of parity with others convicted in the case.

As per reports related to Bihar elections, 142 (58%) of the 243 MLAs elected this year face criminal charges. The RJD topped the list with 46 of its 80 MLAs in that category. The figure is 1% higher than the 57% in 2010 assembly elections.

According to Bihar Election Watch and Association for Democratic Reforms’ analysis, as many as 98 MLAs (40%) have serious criminal cases like murder, attempt to murder, creating communal disharmony, kidnapping and crime against women pending against them.

Of the 142 MLAs, 70 (49%) have already been charge-sheeted. Party-wise, 46 of the 80 MLAs from RJD (58%), 37 (52%) of the 71 from JD(U), 34 (64%) of the 53 from BJP, 16 (59%) of the 27 from Congress, all the three (100%) from CPI(ML), one (50%) of the two from RLSP, and both (100%) from LJP face criminal charges.

While the PIL wants a life ban for convicted persons, experts feel any such demand may not be logical. Says Congress spokesperson and SC lawyer Abhishek Manu Singhvi: “Emotions can’t be the ground of logic in law. If a conviction is stayed then consequences of disqualification from being an MP/MLA or party position can’t and shouldn’t follow because that will be denial of due process to the accused who have a stay from a superior court.” In such cases “public opprobrium and perceptional anger is the best anti-dote for parties.”

Even SC advocate-on-record Sunil Fernandes says “life ban may seem excessive. It may not stand the test of proportionate punishment. Plus it totally takes away the chance of reformation. Apart from hefty period of ban like 10 years or so, there should be a huge monetary penalty that would act as a deterrent.”

The young lawyer is of the opinion that anyone seeking votes on communal or casteist grounds must be barred from contesting elections, at least for 10 years. “This is a short-term measure. In the long-term, comprehensive electoral reforms are needed—prescribe, at least, a graduate degree to contest MLA/MP elections, state funding of candidates from recognised parties, scrapping first-past-the-post system.”

However, anti-corruption crusader Prashant Bhushan says life ban on convicted persons from contesting elections can be a good solution in case of serious offences like corruption. Besides, political parties/organisations which indulge in violence or incite masses through hate speeches should be de-recognised and their members prosecuted, he adds.

According to the activist lawyer, in the case of large-scale violence like riots, there is a need to have a new law which holds both the police and the government officials responsible for dereliction of duty. “Such failure must be made a serious offence and the prosecuting agency, which as of now is controlled by the government, should be made independent.”

Agreeing that urgent measures required for redressal within the political system are decriminalisation and decommunalisation of politics, Fernandes says there is no seriousness in prosecuting those who give hate speeches. There is a need to make existing legal provisions in the IPC and the Representation of the People Act more stringent, he adds.

Recommending measures to control decriminalisation of politics, Singhvi feels there must be a uniform, clear and consistent law admitting no exception, viz. convicted persons will not hold any constitutional position unless the conviction is stayed and not the mere sentence.

But he feels that codes of conduct are useful. “Since they are not enforceable, they become mere declarations of poor intent, which everyone violates in infinity. Instead of this kind of lip service and shadow boxing, it is better to make few but clear laws,” the Congress leader says.

Not sounding so optimistic about new legislations, SC Bar Association president and senior lawyer Dushyant A Dave feels that “no amount of new law can help fight the problems of criminalisation or communalisation in public life and politics. What we need is simply to become more mature towards making a responsible and responsive democracy. We need to establish firm roots in constitutional morality and follow it rigorously. If we can achieve this, the rest will follow for the betterment.”

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