With the Supreme Court refusing to intervene, cynics feel Parliament will not voluntarily bring in a law to bar leaders with criminal records. Our legislators must prove the doubters wrong
The recent judgement of the Supreme Court regarding criminalisation of politics has taken voters a few steps towards making an informed choice while exercising their franchise, but the hopes of debarring such elements from contesting elections seems a bit too distant. This is because of the apex court’s considered view that while entry of criminals into legislative bodies is like a “termite” eroding the citadel of democracy, it cannot make a law to keep them out. That, the court says, is the domain of Parliament, an institution that is yet to show a firmness of resolve to stem the rot.
Over the years, the apex court has spearheaded measures to ensure that the electors have adequate information about the antecedents of individuals contesting elections. The court’s directives have ensured that candidates have to file affidavits about their educational qualifications, assets and liabilities and criminal record. In the latest judgement, the court has gone further and said candidates must repeatedly inform the electors through local media about their criminal record. Further, political parties, which gives tickets to persons with criminal antecedents, must publicise the record of criminal cases of such candidates on its website. After filing the nomination, the candidate and the political party must issue a declaration in widely circulated newspapers about the antecedents of the candidate and must give “wide publicity” to this at least thrice on the local electronic media as well. All this is necessary to foster and nurture an informed citizenry, so that electors may make an informed choice during elections.
The court expressed “immense anguish” at the rising number of individuals with criminal record entering the legislative bodies in the country, but refrained from debarring such individuals from contesting elections. It said the time had come for Parliament to make law to ensure that persons facing serious criminal cases do not enter into the political mainstream. The court recalled the opinion of the Law Commission that persons against whom serious criminal charges have been framed in a court, be barred from contesting elections. All this “vividly exhibits” the society’s concern in regard to criminalisation of politics, but no law has been made by the competent legislature, the court said.
The court also wants Parliament to make a strong law whereby it is mandatory for political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to give them tickets to contest elections. It feels this will go a long way in decriminalising politics.
This judgement reminds us of yet another judgement of the Supreme Court in the infamous JMM Case. This case related to the bribing of MPs to ensure the defeat of a no-confidence motion brought against the PV Narasimha Rao Government in 1993. Rao ran a minority Government and the numbers in the Lok Sabha were precariously stacked against him. He was accused of buying the support of 10 MPs to survive the vote in the Lok Sabha. Four of these MPs belonged to the Jharkhand Mukti Morcha (JMM) and they were paid a total of Rs 2.80 crore in lieu of their support. This cash for vote deal helped Rao defeat the no-confidence motion on July 28, 1993, by 265 votes to 251.
What happened before and after the vote in the House was nothing short of a scandal. A prominent party leader from Karnataka flew to New Delhi with the bribe money in a huge suitcase. Unfortunately, the suit case burst open on the conveyer belt in the Delhi airport and fellow passengers were aghast to see bundles of currency notes strewn all over the place. Even more hilarious was what happened after the vote in the House. The JMM MPs took the bribe money in gunny sacks to a branch of a nationalised bank in New Delhi and asked the manager to deposit it in their accounts! But none of these MPs was punished for accepting a bribe to vote in a certain way in the Lok Sabha and to openly remit the bribe money in a bank.
These corrupt MPs went scot-free because the Supreme Court held that Article 105 of the Constitution shielded them from prosecution. Article 105(1) says: MPs shall enjoy freedom of speech in Parliament. Article 105(2) says no MP “shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament”. This provision is meant to insulate MPs from litigation of any kind for what they say and do in Parliament, so that they can act in a free manner. In this case, the MPs who took bribes were prosecuted under the Prevention of Corruption Act. But the MPs argued that they were protected by Article 105(2) and that they cannot be proceeded against for what they said or did in Parliament. The court found merit in this argument. The majority view of the five-judge Bench of the Supreme Court which heard this case declared that these 10 MPs, who were the alleged bribe takers, were “entitled to the immunity conferred by Article 105(2)”. In other words, even if they had taken bribes to vote, they could not be proceeded against so long as they voted in the House. However, the court said the bribe-givers should be prosecuted, as also the bribe-takers who did not vote in Parliament. It said only those who voted were protected by Article 105(2).
While the Supreme Court’s Constitutional correctness is understandable, the consequence of all this — especially the precipitous fall in the quality of men and women entering our legislatures — is there for all to see. We need not be surprised if many legislators see this as a licence for gross misconduct and assume that they are outside the moral and ethical framework within which the law and the courts expect other public servants to live.
While the apex court says it will not make law to debar persons with criminal record, it would be futile to expect Parliament, which has been a passive spectator to the phenomenon of criminalisation of politics, to now suddenly pay heed to the apex court’s advice. Since the criteria for giving party tickets is “winnability” and since the number of legislators with criminal records has been on the rise over the years, will Parliament share the apex court’s concern and anxiety on this issue and bring in a law to keep criminals out? India’s apex legislature must prove the sceptics wrong!
(The writer is Chairman, Prasar Bharati. The views expressed here are personal)