Politicised criminals in India

A recent Supreme Court judgement on the Representation of People's Act, 1951 has sparked less panic and opposition than one would have expected. This is because the judgement exempts from its applicability the existing legislators; the present members of Indian Parliament and state legislators going to polls this year are not really affected.
The court has sidestepped a five-judge decision in the Prabhakar case which had categorically held that the two categories, one of persons who are not legislators and the other who are legislators "is based on a well-established nexus with public purpose." The two situations are different; in the second, the vacation of a seat affects the House.
As it is, the courts on their own have permitted a convicted member only to mark his presence to prevent his disqualification; he is barred from taking part in the proceedings or vote till his appeal is decided. For all practical purposes, therefore, a convicted Member of Legislative Assembly (MLA) plays no part in the deliberations of the legislature.
This interpretation by the Supreme Court will have serious consequences for opposition human rights activists, trade unionists and political activists, who are so indiscriminately prosecuted under various security laws or even during bandhs and demonstrations. In such a situation, the automatic vacation of the seat by a sitting legislator will vest the ruling party with arbitrary powers.
Consider the enormity of injustice to the elected legislator, who was not convicted at the time of being elected, but was convicted during his term. He will have to vacate his seat even if his conviction is set aside in appeal shortly thereafter. In the interim, another person would have been elected. This can result in irreparable damage to the career of the political activist.
The court recognises the anomaly, but observes that the legislator can ask for stay of conviction by the appellate court and if granted he can continue. With respect, is this not leaving things to the uncertainty of different reactions by judges, provoking the cynical comment in English law that what is justice is measured by the length of the Chancellor's foot. I am afraid this process is discretionary and will vary with the individual decisions of respective judges. This is hardly a satisfactory alternative to Section 8(4) of the Act, which had at least the practical objective to ensure that the electorate's choice is not nullified by the adverse decision of the trial court without giving an opportunity of being corrected on appeal which is his statutory right. In order to avoid further delay, it could be legislated that the seat will stand vacated if the first appeal fails.
No further appeals or revision before the courts will prevent the seat from being vacated. It could also be provided that an appeal by a sitting convicted legislator will be decided within three months. This alternative has the merit of cleansing the electoral process. It will also act as a safeguard against irreparable harm and injustice to the elected legislator.
No, I am not underestimating the danger of criminalisation of politics. Personally I would call it "politicalisation of criminals." Previously criminals helped candidates to win, but now criminals compete among themselves to become legislators -- a thoroughly undemocratic state of affairs, indeed a danger to democracy.
A recent survey shows that at present 162 out of 545 Lok Sabha members and 1,258 out of 4,032 sitting MLAs have declared that criminal cases are pending against them. And this is despite Vice President Hamid Ansari's warning in 2004 -- "Exactly 23% of MPs elected in 2004 had criminal cases registered against them -- over half of these cases could lead to imprisonment of five years or more.
The situation is worse in the case of MLAs. Are we not progressing?"
My opposition to the extreme interpretation by the Supreme Court, resulting in a validly elected legislator losing his seat, should not be interpreted as minimising the danger of criminality in our legislatures. Rather the contrary. I feel that a more satisfactory mechanism to halt politicalisation of criminals is to enact a piece of legislation that has been advocated by the People's Union for Civil Liberties.
Specifically, that if six months before the polling date, a person has been charge-sheeted by a court, he/she will be barred from contesting the next election. This timeframe will give the person concerned sufficient time to have the charge-sheet quashed by an appellate court, thus negating the doubtful defence advanced by political parties of false cases being lodged against rivals on the eve of nomination date.
I am more disturbed by the second judgement holding valid Section 62(5) of Representation of People Act, 1951. It prohibits a person from voting if he is confined to prison even on a petty offence or is in the lawful custody of the police. On the other hand, an accused, if he is rich -- like for instance those charged in the Coalgate and telecom scandals -- can vote. In essence, an anti-labour state is colluding to keep the disadvantaged in jail. The ordinary citizen will be inclined to agree with Charles Dickens' favourite character, Bumble, when he said: "If the law supposes that, then the law is an idiot," echoing in the same strain that provoked George Chapman (1559-1634) to say: "I am ashamed, the law is such an ass."
In the UK, the right to vote is only denied if a person is convicted and sentenced to 12 months in jail. In Israel, even a convicted person in jail is allowed to vote. As far back as 1955, the United Nations had resolved "that unconvicted prisoners are presumed to be innocent and shall be treated as such."
Why is it that the political parties, which are so upset over the latest Supreme Court ruling, are mysteriously silent and inactive on the question of amending election rules to give voters the right of negative voting, by carrying out the unanimous recommendation of the Election Commission, specifically to provide an extra button in the electronic voting machine to denote negative voting? Are the parties afraid of the possible answer --"None of the Above"?

The writer is former Chief Justice, Delhi High Court.
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