In another landmark reminder and questioning the Supreme Court of India last week, on 24 November 2021, wondered why the Government is not concerned about stalemate in expediting long pending criminal cases against many sitting and past MPs and MLAs. The Chief Justice himself made serious remarks about the situation since the Supreme Court’s directive a year ago, in September 2020, that High Courts should constitute special bench to focus on completing the investigation. And yet there has been no progress and that criminal trials are even held up resulting in interim stays and that in the meanwhile state governments have also resorted to withdraw some criminal cases although such cases can be withdrawn only with the consent of the High Courts. Also, such criminal cases pending against sitting and former MPs and MLA s have increased nearly twenty percent in less than two years crossing 4400 now.
CJI’s specific question to Government
The Chief Justice has now questioned specifically why the Government is not proposing to ban political convicts from contesting elections. This has been a demand of civil society over the years. Even the Election Commission of India had already urged for such a move a few years ago. It is obvious that governments, irrespective of which political party is in power, have been dodging the very idea of banning of criminals from contesting elections. Going beyond, the Government has even rejected the very idea of banning. In an affidavit filed in December 2020 the Ministry maintained that the MPs and MLAs are “not bound by specific service conditions” (but enjoy benefits of all sorts including pension?!) and that “they are bound by oath to serve citizens and country.” (as if what Atal Bihari Vajpayee had said in this context was ignored?!). It further contended that MPs and MLAs “are bound by propriety, good conscience and interest of the nation.” The Government affidavit maintained that “disqualification under the Representation of People’s Act of 1951, for the period of prison sentence and six years are enough for legislators”. The Public Interest Foundation, on the other hand, argued that “criminalisation of politics is a better manifest truth and it is a termite to the citadel of democracy.”
Debunking the process
The proceedings in the three judge bench led by CJI of Supreme Court last week bring out determination to curb but how the Government is trying to debunk the efforts to speed up the trials is now open. Despite concerns of civil society and the Supreme Court, active political parties remain unconcerned. There is an ample evidence now before the nation how criminal antecedents of legislators has been crippling the country in so many different ways and perpetuating the known evil practices in choosing people’s representatives. The recent revelations of CMS studies over the previous five general elections on “note for vote” phenomenon and how elections have become money guzzlers and mother of all corruption in the country have indicated the implications. And the ADR more recently has brought out tellingly how such legislators at the Union and in States are dominating the Cabinets and eroding the very governance. These and other studies remind that the oath that legislators take more than once (at the time of nomination and on the floor) lost its significance long ago and that claims made in the Government affidavits are no longer backed up.
Political parties insensitive
Even more significant of the Supreme Court concerns and reminder is how political parties have become insensitive to larger public mood and become belligerent to even ignore the judiciary as if the Republic is of and by the political parties and not so much of “We the People.” It is not merely the party in power but electorally active every party and they are together in this regard. This brings out that the hall mark of “checks and balances” system that is the bedrock, is no longer in vogue. The serious implications of this trend is not being deliberated at any level in the country. The fact the news media of the country hardly reported the Supreme Court’s posers last week reminds their reliability as watchdog. Even the civil society’s concerns are being ignored or bypassed. Their reach out to the President of India, as a last resort, remains as a high hope.
The Supreme Court more than a couple of times reminded the Election Commission of India, which is empowered to regulate political parties as a part of its mandate to ensure “free and fair elections” in the country, that it is not a “toothless body”. And yet there seems no difference in regulating the political parties. Supreme Court had reminded more than four times in the last decade about ECI s role and functioning. The judiciary has made similar observations in the last decade about the way political parties operate. These concerns include, the logics of selecting the candidates for the elections, the way the campaigns are waged, the significance of manifesto, adherence to poll codes with even reference to religion, about the lures and doles and about incumbent manoeuvres to influence the poll process. And yet there is no evidence of cognizance. On the contrary, in the last few elections in the country it is becoming blatant and parties are out and out to polarise and divide the nation. The Supreme Court proceedings have to be viewed in this larger context. The apex court should be complimented for it to remind that it is for the Government to bring in necessary changes in the laws in consultation with the ECI, not for the Judiciary to impose verdicts. It is obvious that the crisis boils down to the way representatives of people are elected and the practices in that process.
Checks and balances
Clearly it is a stalemate. The Supreme
Court should be thanked for not precipitating the issue beyond questioning going by the constitution and confine to reminding but leave it to the Nation to take on the complexities. At the same time the apex court is rightly concerned about “checks and balances” provision as it is its responsibility. The issue now is a challenge before the Nation, but even more, it is an opportunity not only to the leaders of political parties, but also of civil society, media and academics. A way out has to be found for a win-win way forward. My new book, “Next Big Game Changer of Elections in India”, offers such a way out. The book suggests that without shift in the paradigm of electoral campaign which is what the source and origin for many of the ills in the trajectory of development, democracy and governance, anything else amounts to treating symptoms. A new framework suggested is also an opportunity for political parties to reposition themselves. These suggestions in the book could be considered by the apex court, the ECI and political leaders should deliberate and reach out for an early way out.
Dr N. Bhaskara Rao has been a New Delhi based public policy analyst of long standing, now in native village in Andhra Pradesh.