Keeping convicted netas out: SC ruling doesn't do enough

by FP Staff  Jul 11, 2013 11:00 IST

#Electoral reform   #political reform   #Supreme Court  

The Supreme Court ruling on Wednesday disqualifying convicted parliamentarians and legislators from holding public office with immediate effect has been intuitively welcomed as a first step towards cleaning up the rot in the electoral system. But, predictably, political parties are gearing up to challenge the ruling on the specious ground that the ruling interferes with the democratic process to the extent that it narrows down the pool of candidates that parties can pick to contest elections.

The court ruled that Section 8 (4) of the Representation of the People Act, 1951 - which allows legislators convicted of crimes to retain their public office if they have filed an appeal - was ultra vires of the Constitution. For far too long, that provision has been abused by politicians to brazenly circumvent the electoral law and, given the lethargy of the criminal justice system in India, to stay on in office despite their being found guilty of grave crimes, including murder and rape.

It will take more than the Supreme Court ruling on Wednesday to get parties to clean up their act. AFP

It will take more than the Supreme Court ruling on Wednesday to get parties to clean up their act. AFP

But curiously, the court ruling gave a reprieve to existing parliamentarians and legislators from having to step down even if they have been convicted of serious crimes - so long as they have proffered appeals.

The judges ruled:

"Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in...  Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications... should not, in our considered opinion, be affected by the declaration now made by us  in this judgment."

In giving this rider to existing convicted legislators and Parliamentarians, the judges cited a 1951 Supreme Court ruling (in Harla vs State of Rajasthan, SC 467), which noted:

"... it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with exercise of due diligence have acquired any knowledge."

This argument waters down the effectiveness of the ruling, by establishing two classes of convicted legislators and parliamentarians: those who were convicted before Wednesday, and those who will be convicted after.While the precedent that the Supreme Court cites is not without merits, the provision opens the door to legal challenges to the ruling on Wednesday, of the sorts that the government is already preparing to mount.

But the political parties' argument that the ruling violates the spirit of democracy in disqualifying convicted legislators and parliamentarians rests on inform ground. The right to contest elections, as Lok Satta Party leader Jayaprakash Narayan argues, is not a fundamental right, and in any case it is subsidiary to the larger right of the people to be represented in legislative bodies by good candidates.

Political parties cite the possibility of "vexatious litigation" and of law enforcement agencies acting as political instruments of the ruling party to say that so-called criminal cases don't always have merit in them. There is an element of truth to that claim, as we've seen. But just how perverse that argument has become can be seen from the absurd defence of even convicted netas who make a mockery of the due process of law to cling on to office.

The ultimate test of the effectiveness of Wednesday's ruling is whether it will advance the project to clean up the electoral system.  On that count, however, there is cause for viewing the ruling with some sobriety. That enterprise needs a more broadbased reform of electoral laws, which today puts those with 'money power' and 'muscle power' at a distinct advantage, come election time. And for now, at any rate, there is little incentive for mainstream political parties to change that.

Cynicism isn't particularly helpful, particularly when one confronts all-round decay in democratic institutions. But it will take more than Wednesday's ruling to get political parties to clean up their act.