By Anirudh Prakash
Four key judicial pronouncements by the higher courts and a crucial decision by the Central Information Commission (CIC) relating to political parties and elected representatives have created quite a stir in different quarters. Supreme Court’s rulings asking the Election Commission to frame guidelines for promises made by political parties in their election manifestos; providing for instant disqualification of convicted MPs, MLAs and MLCs and barring those in jail/lawful custody from contest; Allahabad high court order banning caste based rallies; and the CIC order to bring six major political parties under the ambit of the Right to Information (RTI) Act as they qualify as “public authority”, have drawn a mixed response from not just the political class but other sections as well.
The landmark SC judgement of July 10 regarding convicted elected representatives has by and large been welcomed as a key measure to cleanse politics of criminalisation. The court went to the extent of declaring that Parliament had “exceeded its powers” while framing Section 8 (4) of the Representation of the People Act, 1951 and held it ultra vires of the Constitution.
The Apex Court’s ruling came in response to two PILs, which were a reflection of the people’s disenchantment with the brazen abuse of this provision by politicians to cling on to office and power, thereby increasing criminality of politics. This can only be expected in a country where 1,460 legislators (out of 4,807) or 30 per cent, have criminal records, which includes 162 MPs out of the 543 members of Lok Sabha (these MPs and MLAs have only been charged and are not convicted.) A day later, the top court was on the heels of elected representatives again, this time holding that a person in jail or in lawful custody cannot contest polls. The court’s logic was that a jailed person loses the right to vote and a non-elector cannot contest as well.
These back-to-back judgements with far-reaching ramifications, of course aimed at electoral reforms and decriminalisation of politics, set the cat among the pigeons. Almost all political parties welcomed the first, perhaps scared to go against popular sentiment, but there was hardly any support for the second, some even calling it `judicial overreach.’
Noted Socialist George Fernandes, Janata Dal (United) chief Sharad Yadav, and Communist leader A K Roy, facing politically motivated charges, had successfully fought polls in 1970s from jails. Fighting criminal charges of murder, rape, Raja Bhaiya, Mohammad Shahabuddin, Mukhtar Ansari, Munna Bajrangi, Pappu Yadav and Gopal Kanda are among those who contested while in jail or continue as legislators in jail. Some others like former Gujarat home minister Amit Shah, DMK leaders A. Raja and Kanimozhi, and Congress’ Suresh Kalmadi, facing different criminal charges, cannot contest if their bail is cancelled.
The biggest reform that may happen through these rulings is that the political parties would be wary of allotting tickets to persons facing cases, except to those whom they genuinely think are motivated cases, as they may be disqualified bringing down the strength of the party in the House. Prof. Jagdeep Chhokar of Association of Democratic Rights and former dean at Indian Institute of Management, Ahmedabad told INAV: “I am quite clear that these orders will have long term implications on our political system. It will become less murky and more appropriate for a healthy democracy. There is a kind of groundswell of public opinion reflected in the SC ruling. “Business as usual” cannot continue. It is an opportunity for the political parties to improve themselves. We need political parties but they should not become oblivious to public opinion.”
As regards the second verdict that those jailed cannot contest, Union law minister Kapil Sibal cautioned that this can set off “vendetta politics”, while CPM demanded that the ruling be “overturned.” Nripendra Misra, director of think tank Public Interest Foundation of India, commented: “This judgment requires review by the Court in the present fractious political climate marred by mounting criminalisation.” Prof. Balveer Arora, Chairman, and Centre for Multi-level Federalism, New Delhi and former rector, Jawaharlal Nehru University, opined: “For cleansing politics of criminal elements, the bar on contesting from jail should apply only to those convicted, and not those who are undertrial or interned on the basis of an FIR for a non-bailable offence.
Otherwise, it leaves the door open for ‘fixing’ opponents.” According to retired chief justice of India M. N. Venkatachalaiah, the National Commission on Constitution Review, which he headed, went into most of the issues covering electoral reforms. His panel had called for tougher laws, recommending disqualification through amendment to RP Act of any person charged with any offence punishable with imprisonment for a maximum term of five years.
The Allahabad High Court on July 11 delivered a blow to political parties exploiting caste for electoral gains as it banned caste-based rallies in Uttar Pradesh holding that caste and community-based political mobilisation was divisive and a threat to public order. Two UP parties, which draw their main support base from the backward Yadav and Dalit communities — Samajwadi Party and Bahujan Samaj Party respectively – reacted in contrasting style.
While SP welcomed it, BSP opposed the order. However, several organisations are of the opinion that caste is a reality in India and that the Election Commission has already banned such caste and community-based appeals during the election process. What is required, according to some, is teeth for the EC to take punitive action against the violator parties. Prof. Arora remarks this ban can easily be circumvented by changing nomenclatures ensuring that the parties will still appeal to caste solidarities during elections. “It is in the nature of caste to meet separately and no law can counter that.”
Like in most other cases, the government has refrained from expressing its clear opinion on any of these rulings. However, it has made clear that an all party meeting will be called to discuss the fallout. INAV