[op-ed snap] Court’s lost chance

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Mains Paper 2: Polity | Salient features of the Representation of People’s Act

From UPSC perspective, the following things are important:

Prelims level: Representation of People Act, 1951

Mains level: Legislative’s lax attitude on enacting a law to decriminalise politics in India and role played by the judiciary in various electoral reforms related to the same


Context

SC verdict on decriminalisation of politics

  1. The Supreme Court has delivered its much-awaited pronouncement on the petitions asking it to bar politicians facing heinous criminal charges — like rape, murder and kidnapping — from contesting elections
  2. A five-judge bench led by Chief Justice said that the Court cannot play the role of Parliament
  3. The judgment left much to be desired

Role of judiciary and EC in democracy

  1. The judiciary can be called as the guardian angel of democracy
  2. This time, the SC has passed the buck to the EC, even though the Commission has been crying itself hoarse for the apex court’s aid for the past two decades

Directives by SC

  1. First, while filing their nominations, the candidates must declare if there are pending criminal cases against them in courts
  2. Second, political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites
  3. Third, Parliament must legislate on the matter to ensure that candidates with criminal antecedents do not enter public life or become lawmakers
  4. Fourth, while filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters
  5. Fifth, political parties should publicise the background of their candidates via the electronic media and issue declarations

Flaws in the directives

  1. The recommendations have practical issues
  2. Parliament, regardless of who is in power, has always been reluctant to legislate on the issue
  3. Voters do not generally read the websites of political parties
  4. The recommendation regarding publicity campaigns about the criminal background of candidates by political parties sounds counter-intuitive. Why would they actively publicise anything that goes against their interests

Ban on convicted politicians but not undertrials

  1. Section 8 of the Representation of People Act, 1951, bans convicted politicians
  2. But those facing trial, no matter how serious the charges, are free to contest elections
  3. The political parties are united in their opposition to any law, which debars perpetrators of heinous offences during the pendency of cases
  4. They hold that this could lead to wrong cases being filed against candidates

EC’s proposals to avoid wrongful conviction

  1. First, all criminal cases will not invite a ban, only the heinous offences will do
  2. Second, the case should be registered at least six months before the elections
  3. Third, the court must have framed the charges

Opposition to EC’s proposals

  1. The opponents of the EC proposal have time and again stated that the candidates and the legislators are deemed “innocent until proven guilty”
  2. An argument can be raised about the 2.7 lakh undertrials, not yet convicted and hence innocent, but locked up in jails
  3. Four of their fundamental rights stand suspended — liberty, freedom of movement, freedom of occupation and the right to dignity
  4. If the rights of those undertrials can be suspended within the ambit of the law, what is the sanctity of the candidates’ right to contest elections — only a statutory right, and not a fundamental one?

No word on fast track courts

  1. The Court has not said a word on the provision of fast track courts for such cases though the issue is entirely in its domain
  2. Fast-tracking has been the accepted norm
  3. Many categories of special courts such as the CBI courts, consumer courts and, more recently, fast-track courts for rape cases do create special categories for the purpose of adjudication, and nobody has dubbed them as discriminatory
  4. The Representation of People Act also recognises this in principle, requiring the high courts to decide on election petitions within six months
  5. In a March 2014 SC judgment, the court had accepted the urgent need for cleansing politics and directed all subordinate courts to give their verdict on cases involving legislators within a year or give reasons for not doing so to the chief justice of the high court
  6. Progress in this matter has not been reviewed

Way Forward

  1. The present verdict seems a missed opportunity by the Supreme Court, especially when seen in the light of the nation’s fight for free, fair and clean elections
  2. Judicial activism has been at the root of some of the most groundbreaking reforms in India’s democratic history
  3. The doctrine of separation of powers has to be seen in the light of the need for checks and balances
  4. When the executive and legislature are unwilling to do their job, the judiciary must step in on behalf of the citizens
Electoral Reforms In India
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