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16 July, 2013

Flawed bid to clean up politics

BRP Bhaskar
Gulf Today

The judiciary, in two landmark judgements delivered last week, severely restricted the right of criminal elements to enter electoral politics.

On Wednesday, the Supreme Court, while disposing of two public interest petitions, took away the privilege of retaining their elective posts which convicted members of Parliament and state legislatures had enjoyed all along, holding it unconstitutional.

Section 8 of the Representation of the People Act lays down that a person convicted and sentenced to imprisonment shall be disqualified from holding an elective office for six years from the date of conviction. It, however, permits a sitting MP or MLA who files an appeal against his conviction to retain the elective post until the legal process is exhausted. The court ruled that different standards could not be applied to those who hold elective posts and those who do not.

On Thursday, the court, rejecting an appeal filed by the Election Commission, upheld a Patna high court ruling that a person in lawful custody, whether convicted of a crime or not, cannot contest elections as he does not have the right to vote while in prison and has, therefore, ceased to be an elector.

“The Law temporarily takes away the power of such persons to go anywhere near the election scene,” the apex court said.

Both the judgements were delivered by a two-member bench comprising AK Patnaik and SJ Mukhopadhyaya. Both involve interpretation of provisions of the Representation of the People Act, passed in 1951, ahead of the first general elections to Parliament and state legislatures, held during 1951-52, in terms of the Constitution which came into force in 1950.

Political parties which cautiously welcomed the first judgement as a step towards checking presence of criminals in elective bodies were forced to rethink their position when the second judgement brought home the wide sweep of the cleansing process they have set in.

The judgements have put a question mark over the political future of thousands of politicians who are facing prosecution in criminal cases or awaiting decision on appeals against their conviction. The court has made it clear that the new ruling will only apply prospectively. Convicted MPs and MLAs holding on to their seats on the strength of bail granted by courts are, therefore, safe for the present.

Thanks to an earlier Supreme Court judgement, it is now mandatory for candidates seeking election to Parliament or to state legislatures to file two affidavits, one listing their assets and liabilities and the other disclosing involvement in criminal cases, if any. The Election Commission puts the documents on the web, and print and electronic media report their highlights.

Accordingly, voters have access to information about the antecedents of the candidates but their criminal records do not appear to adversely affect their choice. In the absence of any reliable studies, it is difficult to conclude whether the voters feel intimidated or favour those with criminal backgrounds on the basis of narrow loyalties based on factors such as caste and religion.

According to the National Election Watch and the Association for Democratic Reforms, civil society bodies actively pursuing the goal of cleansing politics of criminal elements, 1,460 persons currently functioning as MPs and MLAs have admitted in their affidavits to being involved in criminal cases. This constitutes a little over 30 per cent of the total of 4,807 elected representatives whose affidavits were analysed. The criminal charges against 688 of them (14 per cent of the total) are of a serious nature.

As many as 305 MPs and MLAs of the Congress party (21 per cent of the party’s total) and 313 of the Bharatiya Janata Party (11 per cent of the total) are involved in criminal cases.

Seventy-four per cent of the MLAs of Jharkhand state, 58 per cent of those of Bihar and 47 per cent of those of Uttar Pradesh have criminal records. The small northeastern state of Manipur is the only one with no tainted legislator.

While the Supreme Court may have acted with the best of intentions, it has unwittingly provided unscrupulous politicians belonging to more than a dozen parties which wield power in the different states a means to subvert the democratic process. They can keep inconvenient rivals out of the poll arena by arresting them on trumped-up charges. This was, in fact, what the Jammu and Kashmir administration did from 1953 to 1975 to prevent estranged former Chief Minister Sheikh Mohammed Abdullah and his supporters from making a bid for power. -- Gulf Today, July 16, 2013.

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