Why is India’s Supreme Court Targeting Politicians?

India’s Supreme Court has, once again, lashed out against Members of Parliament (MPs) and Members of Legislative Assembly (MLAs).

A view of the Supreme Court of India. Credit: V. Sudershan

In a recent order, the Apex Court has ensured MPs and MLAs facing criminal charges can no longer take refuge under the long-drawn criminal trials against them and continue in the office for as long as it takes for the outcome of the trail.

In early March, the Supreme Court set a year’s deadline for completing proceedings against such MPs and MLAs after framing of charges. In July 2013, the Supreme Court had ruled a person who is in “lawful custody,” including under-trials as well as those in police or judicial custody, cannot contest elections to the Lok Sabha or state assemblies.

The court had then said MPs and MLAs who have been convicted in criminal cases by the trail courts will be disqualified from contesting election. But the order was overruled after passing a bill in the parliament.

SC’s latest aims to clean the political system

The latest order by the Supreme Court seems like a step in the right direction to clean India’s political system. And, there is a very high possibility that the order might just bring to an end, the lengthy political careers of many of these law makers. Just sometime back, the court had ordered that an MP or an MLA convicted and sentenced to two years or more in jail will automatically be disqualified. The disqualification would continue for an extra six years after the serving of the sentence.

A bench headed by justice RM Lodha held that trial courts would have to explain to the chief justices of their high courts if proceedings are not completed within a year of framing charges and order day-to-day hearings in such cases. The order said that the chief justice can make the decision of extending the trail period if that person finds the reason for the delay justifiable.

Undertrial MPs, MLAs continue to hold office

As of now, with proceedings against many of the MPs and MLAs pending for years, these lawmakers enjoy the membership of the legislative bodies despite being charged with heinous offences, the court maintained “… in cases where MPs and MLAs are involved (in criminal cases) trial should get over soon. If somebody is innocent, let he or she be exonerated soon. You will yourself see a change in performance of the Parliament and assembly.”

The order came up during a public interest litigation filed by the NGO Public Interest Foundation, asking MPs and MLAs to be banned from elections. The court, however, will continue to hear the PIL.

With the elections coming close, the criminal backgrounds of many MPs and MLAs has become a matter of concern. The official press release by Association of Democratic Reforms (ADR) suggests that around one-third of Legislative Poll candidates have criminal records as of March 2, 2014.

ADR, National Election Watch checked previous records 

Of these candidates, 70 are those who have contested Assembly or Lok Sabha/Rajya Sabha elections in the past. Reportedly, the ADR and National Election Watch checked the records of these 70 candidates through the affidavits submitted by them during previous elections. In all, 203 candidates were announced by several parties in the beginning of the month, out of 70 candidates who were examined, 34 had declared a total of 224 criminal cases against themselves in their previous election affidavit.

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Among the parties, the Hindu nationalist Shiv Sena has 12 out of 14 candidates with criminal cases, BJP has 13 out of 32, which comes up to 41 percent candidates with criminal cases, Nationalist Congress Party has eight out of 13 totaling up to 62 percent candidates with criminal cases and AIADMK has one out of six candidates with criminal cases.

Most candidates had criminal charges

Many of these candidates had declared serious criminal cases against them in the previous affidavit. These candidates include, seven out of 14 candidates from Shiv Sena, five out of 13 candidates of Nationalist Congress Party, seven out of 32 candidates of BJP and one out of six candidates of AIADMK who have declared serious criminal cases against themselves.

A law commission report submitted in the court during the hearing of the PIL filed suggested in the past 10 years since 2004, 18 percent of the candidates contesting in elections, state or national, have criminal cases pending against them. And, over 5,000 candidates faced serious criminal charges and 1,187 of them have gone on to win elections during 2004-13.

In 2013, based on the information amassed by replies to RTI applications filed by the Forum of Good Governance in Andhra Pradesh, it was reported that 83 of the 295 sitting MLAs in the state, back then, had cases pending against them and 54 of them had criminal charges registered against them.

Also, of the 60 MPs from the state, 14 had cases pending against them out of which eight are for criminal offences. Besides, eight of the 90 MLCs had cases pending against them and three of them face criminal charges. When in July 2013, the Supreme Court had ordered that a candidate facing criminal charges cannot contest elections it has created quite a stir in political circles.

Back then, the Supreme Court had said a person who is in jail cannot cast his vote and is not an “elector” under the Representation of the People Act, and therefore, he is disqualified from contesting elections.

According to Section 62(5) of the Act, titled “Right to vote,” a person shall not vote in an election if s/he is confined in jail or is in the lawful custody of the police.

But the same act also conditions that a person must be an “elector” for a parliamentary or assembly constituency in order to contest an election. And, since a person in jail cannot vote he is not an elector and therefore cannot context election. This ruling, however, after being termed “erroneous” was overturned in the Parliament by passing a bill overruling Supreme Court’s judgement.

This time, the Court has ordered to expedite the trail against lawmakers to make for a cleaner political environment. This will, hopefully, help in clearing the names of those innocent candidates whose cases have been dragging for years now and also punish those candidates who are guilty of charges pressed against them.

That is, if the Parliament does not subvert the process to suit the convenience of its inmates.

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal think tank. His areas of expertise include policy, inclusion, foreign affairs, law and diversity. His firm’s website is www.draftcraft.in and he can be reached at gajanan@draftcraft.inRead other articles by Gajanan.