Parliament should back the court, not criminals

H. K. Dua

Enough is enough seems to be the Supreme Court’s mood these days. When Parliament has singularly failed to stop the entry of criminals into its portals, the Supreme Court has taken upon itself the task of tackling what has become a serious blot on our democratic system.

The court came out with an important judgment on July 10 to ensure that those who are convicted of serious crimes cannot sit in Parliament or State legislatures simply by filing an appeal. The crucial verdict struck down as unconstitutional Section 8 (4) of the Representation of the People Act that gives elected convicts the cover of appeal in order to sit in Parliament or State Assemblies for years.

In one bold stroke, this cover has been rightly snatched away. Convicted legislators who are already on appeal have not been touched by the court’s verdict.

The court, which allowed writ petitions filed by a public-spirited advocate Lily Thomas and Lok Prahari, a non-governmental organisation fighting for people’s rights, took recourse to Articles 102 and Article 191 of the Constitution to declare section 8(4) ultra vires. The judgment makes it clear that the same disqualification clause must apply both to a person chosen to be a member of Parliament or State Legislature and for a person to continue as an MP or MLA.

The court has, however, excluded from the new disqualification doctrine the legion of MPs and MLAs already convicted, mainly because it does not want to provoke a confrontation between the judiciary and Parliament. Only prospective convicts will thus be disqualified.

While the Supreme Court verdict is a blow against criminals sitting in legislatures, I believe it has not gone far enough in tackling the menace of criminalisation that is corroding our democracy.

The Supreme Court had earlier favoured the view that once charges are framed against a candidate by a magistrate, his or her nomination papers should be rejected. This shuts the electoral door on criminals at the entry point — even before their conviction. That would have been a more effective remedy than the recent judgment.

The Election Commission sided with the Supreme Court and had called a meeting of political parties to evolve a consensus. But most of them, shockingly, opposed the move on the ground that their candidates could be framed on false charges and kept out of elections.

The court’s latest judgment, which is prospective in nature, has stirred the pot again.

Fearing a backlash, politicians across the political spectrum have seemingly welcomed the court’s view. But already, criticism of the judgment has begun trickling in from various political parties. Indeed, pressure is building on the government to file a review petition. The seeds of possible conflict between Parliament and the judiciary on this issue can already be seen.

What data shows

Political parties are themselves to blame for having brought about the present situation. They ought not to have allowed the entry of criminals into their own ranks. Criminals should not be given tickets to facilitate their entry into Parliament and State legislatures.

The fact is that criminals today are present in our legislative bodies in substantial numbers, exercising their baneful influence on government formation, policies, decision-making, and governance in different parts of the country.

The Association of Democratic Reforms (ADR) has come out with figures which are staggering. Going by the records of the Election Commission, the ADR says 162 out of 545 Lok Sabha MPs and 1,258 out of 4,032 sitting MLAs have declared that there are criminal cases pending against them. Those among them who have been convicted “in harness” have filed appeals so that they can serve out their full-term.

Can be destabilising

These are huge figures by any measure and can have a destabilising influence on the country.

Not long ago, a government lost power at the Centre by just one vote. Imagine what the 162 members of Parliament with criminal antecedents can do to Parliament if they choose to join hands and form a party of their own, making the political parties that accommodate them irrelevant! Or mafia groups in different States can come to a mutually accommodative arrangement and start governing parts of the country for their own benefit. Unless we send criminals to jail and stop allowing them entry into Parliament or State Assemblies, the future of democracy will always be in danger.

The reason political parties do not want to stop criminals from joining Parliament or State Assemblies is because they want to use them to win more seats. This is a myopic view; one that undermines the very foundations of democracy and its institutions.

The Supreme Court has shown the way. Parliament is entitled to remove some of the infirmities in its judgment, but the court’s view cannot be simply ignored. People across the country have welcomed the court’s judgment. All parties should accept it. Parliament should be on the side of the court and the people — and not with the Raja Bhaiyyas and Shahabuddins of the day.

(H.K. Dua, a former Editor of the Hindustan Times, Indian Express and Tribune, is now a Member of Parliament.)

This article by H K Dua on criminals in Parliament /State legislatures has appeared in The Hindu of  July 22, 2013