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Indian Polity

On March 10, 2014, the Supreme Court passed an order in a case brought by the Public Interest Foundation. Various issues dealing with electoral reform were involved, including whether candidates for election should be disqualified only after conviction in a criminal case, or at the earlier point of framing of a charge sheet by a court. That issue was postponed for a more detailed hearing.

However, Justice R.M. Lodha utilised the occasion to pass a succinct and categoric direction, hopefully the forerunner of a game changer for cleaner politics in India. In relation to cases against sitting Members of Parliament (MP) and Members of Legislative Assemblies, who have charges framed against them for serious offences specified in Section 8 of the Representation of the People Act, 1951, the trial should be conducted expeditiously, he said, in no case later than one year. If this was not possible, the Chief Justice of the High Court should be notified.

Move the frame to the present. On November 1, 2017, Justices Ranjan Gogoi and Navin Sinha pick up the baton. They want to know how many of the 1,581 cases involving MLAs and MPs (as declared in their nomination papers to the 2014 elections) had been disposed of within the time frame of one year, and how many of these ended in conviction. The questions are as succinct as the previous order. The Central government will take six weeks to respond. It fairly states that it will cooperate in setting up special courts to try criminal cases involving political persons.

Hardly any reports have filtered in about convictions following Justice Lodha’s order; it is likely that the answer to the court’s questions will show extremely low numbers, corresponding to a high degree of violation of the court’s order. This by itself is a serious concern affecting all branches of government. However, it makes it all the more desirable that the Bench now exercises a firm grip over this case and steers it to conclusion. This will be as great a contribution to governance in India as any other.

Except perhaps for tainted politicians, the rest of India will acknowledge that those with criminal backgrounds cannot govern us. It is not just a few politicians, and not just any criminal background — out of the 542 members of Lok Sabha, 112 (21%) have themselves declared the pendency of serious criminal cases against them — murder, attempt to murder, communal disharmony, kidnapping, crimes against women, etc. These are the people who make laws for us. Furthermore, our ministers are largely chosen from MPs and State Assemblies. Crime and venality stalk the corridors of power. Those with criminal tendencies do not compartmentalise them. They also engage in corruption and infect the bureaucracy and the police. If virtually every aspect of public governance is tainted — from tenders and contracts to safety of buildings and roads to postings and transfers — lay the blame squarely on the decline and fall of political morality. Urgent judicial relief is therefore a necessity.

It is also a real possibility. Few things stand in its way. The argument that we will be somehow breaching the law of equality by creating special courts to try this lot can be brushed aside; Article 14 permits classification based on criteria and nexus; MPs and MLAs form a distinct class and their early trial is a democratic must. They thus deserve to be given priority treatment (as they get in so many other instances). A shortage of judges can be overcome. The Constitution, under Article 224A, provides for the reappointment of retired High Court Judges as ad hoc judges. There is thus a large pool of judges of integrity and experience to choose from.

Special attention needs to be paid to two factors. One is the necessity of having prosecutors who are not attached to any political party. A directorate of prosecution, headed by a retired senior judge, who chooses prosecutors in turn vetted by the Chief Justice of the High Court, should be able to address this aspect. The other danger is that the main trial will be obstructed by interim orders. Experience has shown that political leaders are adept at finding legal counsel who file multifarious interim applications which stymie the trial; High Courts and the Supreme Court have sometimes failed to address these expeditiously. This needs to be avoided, and can be if Chief Justices have a superintending mission.

One concern expressed is to find funds to create the infrastructure and staffing for the special courts. A government which comes up with ₹2.11 lakh crore to clean up bank balance sheets should have no difficulty in finding a fraction to clean up political criminal spread sheets. And if required, the Finance Minister can devise a ‘Swachh Politics Bharat Bond’. It is bound to be oversubscribed, many times over, by delighted citizens.

Sriram Panchu is Senior Advocate in the Madras High Court.

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