To cleanse politics, a new pact
Through two recent judgments The Chief Election Commissioner vs Jan Chowkidar (2013) and Lily Thomas vs Union of India (2013) the Supreme Court has taken great strides in cleansing politics of its criminal elements. Unsurprisingly, at an all-party meeting held in their aftermath, political parties have been severely critical of these judgments. Several aspects are problematic in law and require proper legal review. However, to focus solely on their legal niceties, as several politicians and critics of the court have done, ignoring the popular impatience with the nexus between crime and politics, would be a case of missing the wood for the trees.
In Jan Chowkidar, a two-judge bench of the SC held that since any person confined in prison or in lawful custody of the police is not entitled to vote under Section 62 of The Representation of the People Act (RPA), 1951, the incarcerated person shall also not be entitled to contest elections to Parliament or state legislatures. In law, this decision is clearly erroneous. To contest elections, one only needs to be an "elector" a person who is entitled to registration on the electoral roll. Registration on the electoral roll is a distinct issue from being entitled to actually vote on election day, which is the only entitlement taken away for prisoners. While the SC's eagerness to bar those in prison from contesting elections is understandable, such a bar cannot be achieved through an indefensible legal interpretation. Further, such an interpretation provides a perverse incentive for temporarily incarcerating and consequently disqualifying honest candidates.
On the contrary, in Lily Thomas, the same bench of the SC correctly held that Section 8(4) of the RPA, which allows MPs and MLAs who are convicted while serving as members to continue in office till an appeal against such conviction is disposed of, is unconstitutional. Two justifications were offered first, Parliament does not have the competence to provide different grounds for disqualification of applicants for membership and sitting members; second, deferring the date from which disqualification commences is unconstitutional in light of Articles 101(3) and 190(3) of our Constitution, which mandate that the seat of a member will become vacant automatically on disqualification.
Legal propriety might have demanded that if the court were to rest its decision on the first justification, it ought to have referred the matter to a larger bench. This is because in K Prabhakaran vs P Jayarajan (2005), a Constitution bench of the SC upheld the distinction between disqualifications of existing members and new applicants for membership on the ground that benefits for the former were necessary to protect the sanctity of the House, especially if it was operating on a "razor-edge-thin majority". In any event, its second justification, that Parliament does not have the power to defer the date of commencement of disqualification, was not an issue that was raised in Prabhakaran and provides a valid standalone ground for holding the section unconstitutional.
Both judgments hold important lessons for political parties, courts and the people of India. For political parties, the judgments are symptomatic of the growing disaffection with the political class among the citizenry. Currently, 30 per cent of sitting Lok Sabha MPs and 31 per cent of sitting MLAs have criminal cases against them. While this disaffection has not yet translated into a comprehensive defeat of corrupt candidates, the judgments mark the beginnings of a key alliance between the courts, a conscientious media and an active citizenry. The political class could demonstrate sterling statesmanship and join this alliance, rather than continue as its bκte noire.
In this light, for political parties to react by criticising judicial overreach and underlining the supremacy of Parliament is injudicious. Such a view is based on the foundational fallacy that Parliament is supreme. Parliament is a creature of the Constitution, which as interpreted by courts is the foundation of our political system. Constitutionalism demands that in interpreting legal provisions that relate to the interests of MPs, courts must perform strict scrutiny. While errors made by courts must be criticised, to brand such judicial vigilance as overreach is baseless.
For the higher judiciary, the judgments and consequent reactions to them demonstrate the centrality of its role in the drive to rid politics of criminal elements. Courts must perform this role cautiously, avoiding basic interpretive errors of the sort committed in Jan Chowkidar. At the same time, it must realise that the most significant systemic reform that will serve this purpose is ensuring quicker trials of the accused. It is instructive to note that of the 162 sitting Lok Sabha MPs with pending criminal cases, trials against 161 are yet to be completed. It is imperative that discussions on effective justice delivery be made central in the drive to cleanse politics, something that courts, in exercise of their administrative powers, are well-placed to do.
Finally, for the people of India, the Lily Thomas judgment must become the springboard for a wide-ranging campaign to rid Parliament of its criminal elements. For the fountainhead of the world's largest democracy to also serve as the world's most prominent haven for criminals is simply unacceptable. For Indians in the 21st century, the quest for a clean, criminal-free Parliament is akin to our freedom struggle. The SC has shown its willingness to lead this struggle. It is now up to the people to follow this lead and ensure India has the Parliament we feel it deserves.
Shah is a retired chief justice of the Delhi High Court. Sengupta is lecturer in administrative law at Pembroke College, Oxford