Criminal ganglords, or bahubalis (as they are known in popular parlance), have always been ubiquitous to Uttar Pradesh politics, especially during the elections. Whether out in the open or lodged behind bars for committing heinous crimes, they manage to canvass for the polls and are often swept to power – because of their influence and the fear they imbibe in the minds and hearts of the electorate.
A 27 February Delhi High Court ruling, however, has the potential to dent the power structures of these bahubalis and clean up the electoral process to a good extent.
The case concerns Mukhtar Ansari, a BSP candidate from eastern Uttar Pradesh's Mau constituency. It argues whether Ansari, a mafia-don turned politician, should be let out of jail to canvass for the ongoing Assembly elections in the state.
Ansari had pleaded for his release on custody parole from 15 February till 11 March (result date for the election) so that he could campaign ahead of the Mau polls on 4 March. The additional sessions judge of Delhi’s Tees Hazari court had accepted his plea and granted his temporary release.
Justice Mukta Gupta of the Delhi High Court, however, reversed the lower court's order after opposition from the Election Commission (EC).
This raises a pertinent question: Can the Election Commission oppose a plea for parole?
Ansari is lodged in Lucknow Jail at present, awaiting trial for his involvement in the murder of BJP leader Krishnanand Rai. At the very outset, his lawyers challenged the EC’s right to oppose his plea for temporary release, contending that once the criminal law is set in motion and the matter has reached the courts, a third party cannot interfere in the process. It is only between the accused, the prosecution and the court to decide on such cases, they claimed.
Moreover, they argued that under law, the EC can act or intervene only after the polls are over – that is, if Ansari or his supporters indulged in any violation of law, the Commission can only decide to cancel and go for repolls.
Ansari’s lawyers stressed that EC cannot take preventive measures before the elections, by opposing the parole plea, and claimed that the EC's apprehensions of violation of law and order were far-fetched.
In turn, the EC contended that the Constitution, vide Article 324, gives it a vast array of powers to conduct free and fair elections, hence stated that it was within its rights to claim that Ansari should not be granted parole.
Moreover, The EC backed up its argument by supplying evidence to show that in 2012 and 2014, when Ansari was released temporarily, his supporters had indulged in wanton violence against the electorate.
Relying on previous landmark precedents set by the Supreme Court, the high court held that Article 324 gave a wide range of plenary powers to the EC. This included, in extraordinary circumstances, the power to even intervene in the criminal justice process. Thus, the EC did have a right to demand that Ansari should not be granted a temporary release.
Taking a positive note of the evidence provided by the EC, the court held that there was a fair probability of Ansari and his men again taking the law into their hands, thus violating the sacrosanct principle of free and fair elections.
Armed guards intimidate the electorate
The trial court order stated that Ansari should be guarded by eight armed policemen, whenever he went on campaign rallies. The EC contended that the presence of such armed guards would instill fear in the minds of voters, and would thus amount to a hindrance in conducting elections which were free and fair.
Relying on clause 3.21 of the EC’s 2009 Instructions – which prohibited the display and use of arms during poll campaigning – the court struck down the trial judge’s direction of the presence of armed guarding, holding that it would tantamount to threatening and intimidating the electorate.
Right to contest doesn’t include the right to canvass
Citing precedents laid down by the Supreme Court, Ansari’s lawyers contended that since the right to contest is a democratic right, which cannot be taken away even if a candidate is in prison, Ansari should not be deprived of the right to campaign.
Rejecting this argument, the court held that the right to contest elections did not grant a vested right to campaign for the same. Whether to suspend a convict’s sentence so that he could be granted the liberty to campaign for the polls is a matter solely within the discretion of the court, and Ansari’s past track record and the present circumstances did not warrant the granting of such discretion, the court held.
There’s no such thing as 'custody parole'
According to the law, parole and furlough are available only to those convicted and sentenced for a crime, and the government and prison authorities have the sole prerogative to decide on such matters. Since Ansari was not a convict, as he was an undertrial prisoner, he was not eligible for either furlough or parole, the court held.
Justice Gupta was also critical of the trial judge because what he did in effect was to grant bail to Ansari, when he did not have the jurisdiction to do so. It was also a matter of record that Ansari had not payed for bail.
This aspect of the ruling is significant because many a time, courts set prisoners free for a temporary period even if they are not eligible for either bail or parole. And strongmen like Ansari take full advantage of the misnomer called custody parole, in order to ply their trade of the politics of fear.
Criminalisation of politics has for long been the bane of the polity, courts and the EC. There are plenty of instances where the EC lacks sufficient powers to keep criminals and goons in check, and prevent them from violating the electoral process. Seen in that light, the high court’s ruling significantly strengthens the EC’s hands in keeping criminals and gangsters out of politics.
Firstpost is now on WhatsApp. For the latest analysis, commentary and news updates, sign up for our WhatsApp services. Just go to Firstpost.com/Whatsapp and hit the Subscribe button.
Updated Date: Mar 02, 2017 13:10:29 IST