BJP leader Subramanian Swamy supporting the cause of AIADMK interim general secretary V K Sasikala’s case in the “civil war” within Tamil Nadu’s ruling party over the recent weeks, despite the fact that it is he who had played a leading role in framing corruption charges against the late Chief Minister Jayalalitha and Sasikala, should not be surprising. Swamy, a man of immense intellect otherwise, has always been a maverick politician. But what was really surprising was when Swamy, in a television interview (News X) on Tuesday, felt sorry not for Sasikala’s conviction, along with her late mentor, in the long-pending disproportionate assets case by the Supreme Court but for the punishment that prevents her from contesting elections for six years. Swamy seemed to have suggested that a “reformed” Sasikala could have been an effective chief minister.
In fact, Sasikala’s conviction points at an ongoing debate all over the world whether corrupt politicians should be punished by the court or the people. It may be noted here that there are no uniform laws on convicted politicians. These vary from country to country and in a country like the United States, from state to state. In some cases, a politician after serving his or her punishment can join the political race, whereas in other cases there are disqualification laws that prevent politicians who have been convicted of corruption-related crimes from running for elected office, for periods ranging from several years to life.
In Brazil, politicians convicted of crimes, including corruption-related offences, are barred for eight years to fight elections pursuant to a 2009 bill. In Canada, those convicted for corrupt acts must wait seven years from the date of conviction before they can run for the parliament. French courts have the discretion to impose, as part of a criminal conviction, a period of up to ten years during which the defendant may not vote or run for public office. In countries such as Denmark and Finland, it is their respective parliaments that can vote to disqualify someone convicted of an offence showing untrustworthiness or unfitness for public office.
As we all know, in India, a person convicted of a crime for more than two years (it includes corruption) is debarred from contesting elections for a minimum period of six years from the date of conviction (it can go to the maximum of 10 years if the court says so). The then UPA government in 2013 had thought of bringing an amendment through an ordinance to circumvent this law (as pronounced by the Supreme Court) so as to facilitate former Bihar Chief Minister Lalu Yadav (who was convicted of a corruption case by then) to enter the electoral field, but it did not materialise when Congress Vice President Rahul Gandhi disowned the ordinance.
Now let us see the arguments of the critics who say why disqualification rules do not constitute a good idea and hence “undemocratic”. Three of them are particularly noteworthy. First, disqualification laws are overly blunt, based as these are the outcomes of a criminal justice process, whereas the electoral process involves voters who may exercise their own discretion as to individual politicians. Here, the voters can take corruption concerns into account and trade them off against other considerations, such as competence. For instance, it is quite possible that the electors may prefer a corrupt politician who delivers goods otherwise rather than an honest politician who does not take any decision and who does not come out with new schemes or implement properly the existing ones.
Secondly, allowing voters to give politicians a second chance, so runs the argument (like that from Swamy), could foster increased scrutiny on the position or administration to serve as a check against future misbehaviour. On the other hand, a convicted politician may utilise his second chance by the voters to work with utmost transparency in order to regain people’s trust.
Thirdly, it is very well-known that in today’s politics, which is becoming increasingly competitive where winning elections is everything, politicians can be wrongly implicated by the ruling party in such a manner that things can lead to prosecutorial overreach. This, in turn, may be misused as a political tool against opponents. These concerns are all the more serious when the legislature has the power to disqualify candidates (as in Denmark and Finland). Indeed, in Powell v McCormack, the US Supreme Court had noted that the principle that the voters should be able to choose who governs them is “undermined as much by limiting whom the people can select as by limiting the franchise itself.” The Court was of the view that allowing such a limitation “under the guise of judging qualifications” might “vest an improper and dangerous power in the Legislature.”
Undeniably, the three arguments cited above have some merits. However, in my considered view, a disqualification law needs to be seen holistically in the sense whether or not it serves the overall interests of the Society. And here, the politicians cannot be treated differently from the ordinary people. If a common man or woman or a civil servant can be punished under laws for corruption-related crimes, why should a politician be treated differently? Let us, then, trust our judiciary to take a call on this question. In fact, there is everything to suggest that people in positions of public trust need to get tougher sentences than those who are not. A stronger punishment will convince others not to do what the wrongdoer-politician did. It will have a greater deterrent effect on the corrupt politicians. Otherwise, corrupt leaders, who can always win elections because of their large popular followings and relatively uninformed electorates as is the case in India, will be in public office time and again and abuse its vast powers towards their private enrichment.
In other words, the moot point is whether milder disqualification law adds to the overall tolerance of corruption or whether widespread corruption leads to reduction in voter incentives to punish corruption. Viewed from this angle, India needs stronger disqualification laws, including one that debars lifelong electoral participation in serious cases relating to corruption. For me, Sasikala does not deserve any sympathy. In fact, there is a pending public interest litigation in the Supreme Court on why not convicts debarred from contesting elections for life.
Published Date: Feb 16, 2017 14:48 PM | Updated Date: Feb 16, 2017 14:48 PM