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Sunday, April 11, 2021

All things considered – Supreme Court orders on “decriminalizing the Indian politics”

Recently on Feb 13, 2020, the Supreme Court ordered on decriminalizing the Indian politics. Here is the main part of the order:

“It shall be mandatory for political parties [at the central and state level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates”

The court said the information will have to be published in one local vernacular newspaper and one national newspaper, and on the official social media platforms of the political party, including Facebook and Twitter.

The recent order, delivered by a bench of justices Rohinton Nariman and S Ravindra Bhat, takes the the 2018 order in a positive direction. The order adds specificity to the previous guidelines in four main ways:

  1. The details disclosed by the parties should include the kind of the offences (rape, child abuse, murder etc.), applicable details on the charges have been framed, naming the court dealing with the case, and the case number.
  2. The political parties must disclose the selection criteria used for picking the candidates. Such reasons for selection, the court said, should be regarding the qualifications, achievements and merit of the candidate, and not mere “winnability” in the polls.
  3. upload the details of the above [before] mentioned specifics on their website.
  4. Asked the political parties should submit, before EC, a report of compliance with the court’s directions within 72 hours of the selection of a candidate with criminal cases.

Most of the political parties welcomed these orders by the supreme court in its attempt to decriminalizing the politics.

What is the context against the recent orders?

The main answer is the weak implementation of the 2018 order. Back then, a five-judge bench headed by CJI Dipak Misra admitted that the supreme court cannot cross the “lakshman rekha” and enter the legislative arena to provide disqualification of candidates, who are facing serious criminal cases against them. However, it asked the candidates to put in bold letter her/his criminal antecedents in the required affidavit. This order was issued because currently, under the Representation of Peoples Act, candidates can contest elections unless they are convicted in a criminal case. The recent 2020 orders come from the context there are loopholes that candidates exploited as a workaround. Political parties took advantage of the lack of specific guidelines and published criminal antecedents in unpopular newspapers and news channels and during hours when people don’t watch TV typically.

So why this recent Supreme Court orders on decriminalizing the Indian politics a desirable step?

As the court points out, there is a “Increase in criminals in politics”.

Trend of percent of MPS who have criminal records against them.
Trend of percent of MPS who have criminal records against them.

In 2004, 24% of the members of Parliament (MPs) had criminal cases pending against them; in 2009, it went up to 30%; in 2014, this spiked to 34%. In 2019, 43% of MPs had criminal cases pending against them.

The recent Supreme Court orders on decriminalizing the Indian politics, makes the political parties conscious in their choices of candidates. If the political parties are required to publish the details of the criminal records of their candidate on the party’s website, it will likely be an embarrassing situation for them.

So in which areas does this recent Supreme Court orders scores less?

First, Even though all the parties welcome these recent orders, in general we can expect criticism from the opposition parties. During the time of election season, the opposition party may argue “using the control that the ruling party exercises over the law and order machinery, the government is preventing rivals from fielding strong candidates”

Second is it implied the solution to “over criminalization of Indian politics” lie in ensuring greater visibility to the criminal cases against a candidate contesting an election? the answer may not be a “hell, yeah”. As the saying goes, “if its not a hell, yeah. Its a no”. Remember, every candidate contesting an assembly or Lok Sabha election already is required to file an affidavit listing the cases pending against them. This new order, adds more modalities as such where this information to be published. In the recent 2020 Delhi Assembly election, every candidate contesting an assembly or Lok Sabha election, 25% AAP candidates, 20% of BJP named in criminal cases. But it made little difference.

Leaving those limitations aside, the recent orders on top of existing orders leaves us with one basic question. i.e. is judicial activism the permanent answer to executive inertia? Why does the judicial branch always bears the responsibility to point out the flaws in the executive branch? After all, the legislature, the executive and the judiciary are the equal branches of the Indian government. We clearly need a strong legislation to regulate the functioning of political parties and an unbiased and independent authority to implement it.

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