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Subject: Polity

  • Arresting a Cabinet Minister

    The Maharashtra Police has arrested the Union Minister for MSMEs for allegedly making derogatory remarks against the CM.

    Procedure to arrest a Cabinet Minister

    • If Parliament is not in session, a cabinet minister can be arrested by a law enforcement agency in case of a criminal case registered against him.
    • As per Section 22 A of the Rules of Procedures and Conduct of Business of the Rajya Sabha, the Police, Judge, or Magistrate would, however, have to intimate the Chairman of the Rajya Sabha about the reason for the arrest, the place of detention or imprisonment in an appropriate form.

    What is the procedure to be followed by the Chairman of the Rajya Sabha in case of an arrest?

    • The Chairman is expected to inform the Council if it is sitting about the arrest.
    • If the council is not sitting, he/she is expected to publish it in the bulletin for the information of the members.

    What about the privileges of the Rajya Sabha members vis-a-vis arrests?

    • As per the main privileges of Parliament, in civil cases, they have freedom from arrest during the continuance of the House and 40 days before its commencement and 40 days after its conclusion, as per section 135 of the Code of Civil Procedure.
    • The privilege of freedom from arrest does not extend to criminal offences or cases of detention under preventive detention.

    Can a person be arrested from the precincts of the House?

    • No arrest, whether of a member or of a stranger, can be made within the precincts of the House without the prior permission of the Chairman/Speaker and that too in accordance with the procedure laid down by the Home Ministry in this regard.
    • Similarly, no legal process, civil or criminal, can be served within the precincts of the House without obtaining the prior permission of the Chairman/Speaker whether the House is in session or not.

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    Back2Basics: Parliamentary Privileges

    • Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances.
    • Such privileges are granted as they are needed for democratic functioning.
    • These powers, privileges, and immunities should be defined by the law from time to time.
    • These privileges are considered special provisions and have an overriding effect in conflict.

    Freedom from being arrested

    • The member of parliament cannot be arrested 40 days before and 40 days after the session of the house.
    • If in any case a member of Parliament is arrested within this period, the concerned person should be released in order to attend the session freely.

    Right to exclude strangers from its proceedings and hold secret sessions 

    • The object of including this right was to exclude any chances of daunting or threatening any of the members.
    • The strangers may attempt to interrupt the sessions.

    Right to prohibit the publication of its reporters and proceedings 

    • The right has been granted to remove or delete any part of the proceedings that took place in the house.

    Right to regulate internal proceedings

    • The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly.
    • But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.

    Right to punish members or outsiders for contempt

    • This right has been given to every house of the Parliament.
    • If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
    • The houses have the right to punish any person for any contempt made against the houses in the present or in the past. 

    Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or pass the laws on the powers, privileges and immunities of the members of the parliament and members of the legislative assembly.

  • Protest should not hinder traffic: SC

    The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.

    Right to Protest

    • When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
    • Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
    • In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.

    Constitutional Backing

    • Article 19(1) states that All citizens shall have the right:

    (a) to freedom of speech and expression;

    (b) to assemble peaceably and without arms;

    (c) to form associations or unions;

    (d) to move freely throughout the territory of India;

    (e) to reside and settle in any part of the territory of India; and

    (f) omitted

    (g) to practice any profession, or to carry on any occupation, trade or business

    Reasonable restrictions on Protest

    • Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
    • Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
    • Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
    • Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offense.

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  • What Indian lawmaking needs: More scrutiny, less speed

    Context

    The recent Monsoon Session of Parliament is proof that the speed of passing laws trumps their rigorous scrutiny in our legislative process.

    Issues with lawmaking process in India

    1) Avoiding pre-legislative scrutiny

    • In our parliamentary system, a majority of laws originate from the government.
    • Each ministry decides the path its legislative proposals will take from ideation to enactment.
    • For example, last year, the Shipping Ministry requested public feedback on the two bills — Marine Aids and Inland Vessels.
    • This mechanism enables the strengthening of the legal proposal through stakeholder inputs before being brought to Parliament.
    • However, ministries expedite their bills by not putting them through a similar pre-legislative scrutiny process.

    2) Misuse of Ordinance route

    • Over the years, successive governments have exploited the spirit of this constitutional provision.
    • Governments have promulgated an ordinance a few days before a parliamentary session, cut a session short to issue one, and pushed a law that is not urgent through the ordinance route.
    •  But the executive sometimes fails to follow through on the legislative urgency.
    • Bringing in law through the ordinance route also bypasses parliamentary scrutiny.
    • But parliamentary committees rarely scrutinise bills to replace ordinances because this may take time and defeat the issuing of the ordinance.
    • Over the last few years, bills like GST, Consumer Protection, Insolvency and Bankruptcy, Labour Codes, Surrogacy, and DNA Technology have benefited from parliamentary committees’ scrutiny.
    • Their closed-door technical deliberations, inputs from ministry officials, subject-matter experts, and ordinary citizens have strengthened government bills.

    3) Delay in rule framing

    • Unnecessary urgency in getting laws passed by Parliament does not result in their immediate implementation.
    • For the law to work on the ground, the government is supposed to frame rules.
    • Last year the Cabinet Secretary twice requested the personal intervention of secretaries heading the Union ministries to frame regulations for bringing into force the laws made by Parliament.
    • Before the Monsoon Session, he wrote a follow-up letter on similar lines to his colleagues.

    Implication of fast-tracking the law-making

    • Difficulty in achieving desired outcomes: Hurriedly-made and inadequately-scrutinised laws hardly ever achieve their desired outcomes.
    • Wastage of time of legislature: Enacting statutes without proper scrutiny also wastes the legislature’s time when the government approaches Parliament to amend such laws.
    • Loss of opportunity: But the unmeasurable cost of a poorly-made law is in the loss of opportunity to an entire nation that has to comply with it.

    Way forward

    • The government must ensure that it identifies the gaps in our legal system proactively.
    • All its bills should go through pre-legislative scrutiny before being brought to Parliament.
    • The legislature, on its part, should conduct in-depth scrutiny of government bills.
    • Mandatory scrutiny of bills by parliamentary committees should become the rule and not the exception.

    Conclusion

    India is in urgent need of course correction in its legislating process. What we need is a robust law-making process.

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  • Supreme Court Collegium shows the way in judicial appointments

    Context

    For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

    Significance of the move

    • It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
    • It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
    • Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
    •  The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
    • The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
    • A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.

    Various norms to be followed in judicial appointment

    1) Consideration of merit

    • Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
    • So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
    • In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
    • The most crucial consideration is the merit of the candidates.
    • The merit is the ability of the judge to deliver complete justice.

    2) Plurality

    • The nine judges who decided the above case were quite aware of these compelling realities.
    • So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”

    3) Transparency

    • India is perhaps the only country where the judges select judges to the higher judiciary.
    • It is, therefore, necessary to make the norms of selection transparent and open.
    •  In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
    • The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.

    Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities. 

    Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”

    Conclusion

    The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.

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  • It is time to end judicial feudalism in India

    Context

    The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

    Issues with the judicial hierarchy Vs. hierarchy of judges

    • The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
    • The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
    • No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
    • However, Article 235 speaks of “control over subordinate courts”.
    • This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

    Constitutional provision

    • The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
    • On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
    • Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
    • While the Constitution allows “supervision”, it does not sanction judicial despotism.
    • Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.

    Way forward

    • Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.
    • The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.
    • Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.
    •  If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
    • CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

    Consider the question “Do you agree with the view that the Constitution contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. Give reason in support of your argument.”

    Conclusion

    The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels.

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  • How are Rajya Sabha members punished for misconduct in the House?

    Context

    The Chairman of the Rajya Sabha is reportedly contemplating action against MPs who, he thinks, were involved in the fracas in the House.

    Provisions in House Rules of Rajya Sabha for punishing members

    1) For conduct inside the House

    • Ground for punishment: Rule 256 of the Rajya Sabha’s Rules of Procedure specifies the acts of misconduct: Disregarding the authority of the chair, abusing the rules of the council by persistently and willfully obstructing the business thereof.
    • However, the power to suspend a member is vested in the House, not in the chairman.
    • Under the rule, the maximum period of suspension is for the remainder of the session.
    •  By convention, a suspended member loses his right to get replies to his questions.
    • Thus, suspension from the service of the House is regarded as a serious punishment.
    • But, surprisingly, the rules do not spell out the disabilities of a suspended member.
    • These are imposed on them as per conventions or precedent.
    • Suspension for the remainder of the session makes sense only when they are suspended immediately after the misconduct has been noticed by the chair.
    • The rules of the House do not empower Parliament to inflict any punishment on its members other than suspension for creating disorder in the House.

    2) Misconduct outside the House

    • For the acts of misconduct by the MPs outside the House, which constitute a breach of privilege or contempt of the House, usually the privilege committee investigates the matter and recommends the course of action and the House acts on it.
    • A special committee is appointed usually when the misconduct is so serious that the House may consider expelling the member.
    • Special committee was appointed in 2005 to inquire into the issue of MPs accepting money for raising questions in Parliament.
    • So, special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.

    Issue in the present context

    • It appears that the Rajya Sabha secretariat has prepared a report on the incident in the Rajya Sabhi, which accuses some MPs of assaulting security personnel.
    • But special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.
    • No special committee is required to go into what happens before the eyes of the presiding officer inside the House.
    • As per the rules of the House, they need to be dealt with then and there.
    • The rules do not recognise any punishment other than suspension for a specific period and in this case, the Session is already over.
    • Article 20 of the Constitution prohibits a greater penalty than what the law provided at the time of committing the offence.

    Conclusion

    Punishing the MPs for their misconduct in the House is restricted by the provision in the House rules. These restrictions need to be looked into in the face of growing disruption by the members.

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  • Arrest is not always a must, says Supreme Court

    The Supreme Court has held that merely because the law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.

    What is an Arrest?

    • An arrest is a procedure in a criminal justice system.
    • It is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime.
    • After being taken into custody, the person can be questioned further and/or charged.

    Distinction between arrest and detention

    • There exists a distinction between an investigatory stop or detention and an arrest.
    • The distinction tends to be whether or not the stop is “brief and cursory” in nature, and whether or not a reasonable individual would feel free to leave.

    Article 21 of the Indian Constitution guarantees the protection of life and personal liberty to every individual and states that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”

    Logic behind arresting

    The Supreme Court has noted that:

    • The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary.
    • Or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.
    • The court was emphatic that a distinction must be made between the existence of the power to arrest and the justification for the exercise of this power.

    Sanctions for arrest as outlined by the Supreme Court

    The Supreme Court clarified that:

    (A) Avoiding arrests

    • Arrest isn’t a compulsion: Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.
    • Justification for arrest: A distinction must be made between the existence of the power to arrest and the justification for the exercise of it, it noted.
    • Dignity of the undertrial: If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
    • Evidence protection: There should not be a compulsion on the officer to arrest the accused since many times there is no apprehension that an accused would abscond or tamper with evidence.

    (B) Broad implications of Sec. 170 CrPC

    • Narrow interpretation: Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make an arrest of the accused mandatory at the time of filing of the charge sheet.
    • Custody, not arrest: The word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.The word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody.

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  • Role of Speaker

    Context

    The decline in the functioning of India’s Parliament — and state assemblies as well — is caused by one primary reason: The lack of independence and impartiality of the Speaker.

    Important role of the Speaker

    • Our Constitution, after extensive debate, adopted the Westminster model of governance.
    • In the Lok Sabha, as in the United Kingdom, the Speaker is the supreme authority; he has vast powers and it is his primary duty to ensure the orderly conduct of the business of the House.
    • Constitutional law points out the two essential qualities of a Speaker: Independence and impartiality.
    • As the principal spokesperson of the Lok Sabha, the Speaker represents its collective voice.
    • Indeed, the supremacy of Parliament is emphasised by Article 75(3) of the Constitution: “The Council of Ministers shall be collectively responsible to the House of the People”.
    •  Pandit Nehru referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasised that Speakers should be men of “outstanding ability and impartiality”.

    How role of Speaker matters in functioning Legislature

    • Power to allow debate or discussion: It is the Speaker’s duty to decide what issues will be taken up for discussion.
    • He has the sole discretion to permit an adjournment motion to be tabled or to admit a calling attention notice, if the issue is of urgent public importance.
    • The present practice of the Speaker continuing to be an active member of the ruling party has the inevitable result of his refusing to allow any debate or discussion that may be essential in national interest but may embarrass the ruling party.
    • This inevitably leads to constant disruption of Parliament by the Opposition.
    • The stalling of parliamentary proceedings has led to the passing of important bills in several sessions without any discussion.
    • Violation of separation of power between legislature and executive: The most dangerous consequence is the vastly increased powers that the executive — the bureaucracy — begins to command by default.
    • In 1951, a nine-judge bench of the Supreme Court (In Re Delhi Laws Act Case) held that essential legislative functions cannot be delegated to the bureaucracy; law-making must remain the domain of the legislature.
    • This constitutional mandate is now increasingly and consistently being violated by issuing rules and notifications that have far-reaching consequences.
    • The new rules on information technology and electronic commerce are clear instances of changes that should have come about by a parliamentary law.
    • And worse still is the power given to the executive to issue retrospective notifications — a step unknown to any civilised democracy.
    • Partisan conduct in anti-defection law issues: Several judgments on the anti-defection law have been rendered by the Supreme Court.
    • A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.

    Way forward

    • Speaker should resign from Party: It should be made mandatory that the Speaker ought to resign from his party and his sole allegiance must be to the Constitution and to maintaining the dignity of the House.
    • The separation of powers is part of the basic structure of our Constitution.
    • It is imperative that the Speaker of every legislature resigns from his party to honour his constitutional obligation of independence and impartiality. 
    • This must be accepted as the primary responsibility of every ruling party, both at the Centre and in each state, and made into a constitutional convention.

    Conlcusion

    The option is a binary: Either allow Parliament and state legislatures to descend into terminal decline or make the Speaker truly independent and let every legislature perform its constitutional function.

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  • Collegium recommends nine judges for Supreme Court

    The Supreme Court Collegium, led by Chief Justice of India (CJI) N.V. Ramana has recommended to the government nine names for appointment as apex court judges.

    Significant appointments

    • The Collegium has for the first time, in one single resolution, recommended three women judges.
    • It has thus sent a strong signal in favor of the representation of women in the highest judiciary.
    • The process scripted history by naming Karnataka High Court judge B.V. Nagarathna, who may become India’s first woman CJI.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    Scope for transparency

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegium’s resolutions are now posted online, but reasons are not given.

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    Back2Basics:

  • Criminalisation of politics

    Context

    According to the Association for Democratic Reforms (ADR), 233 MPs in the current Lok Sabha are facing criminal charges, up from 187 in 2014, 162 in 2009, and 128 in 2004. Recently, the Supreme Court has imposed fines on political parties for failing to comply with its orders regarding complete disclosure of their candidates’ criminal history.

    Order adds strength to Election Commission

    • Through the order in a recent case, the SC has put a new onus on the Election Commission to do something concrete, for example, create a phone app to display the detailed criminal history of any contesting candidate.
    • This should be accompanied with a separate cell in the ECI to monitor the compliance of all the political parties regarding this; any breach should be brought to the attention of the SC without delay.

    Why legislature and political parties are reluctant?

    • Two excuses: The legislature has been very slow in addressing this issue, and political parties remain extremely reluctant to change their ways, citing two major excuses.
    • Winnability of candidate: “Winnability” of candidates is the first reason.
    • The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
    • The winnability clause is an attempt by the party to absolve itself of all blame and put the onus of sending a criminally charged candidate to Parliament solely on the voter.
    • Innocent until proven guilty maxim: The other reason offered by political parties is summarised by the maxim of Indian law, which is that any accused is innocent until proven guilty.
    • It is argued that most criminally accused candidates are the victims of “vendetta politics”.

    Issues with allowing criminals to contest election

    • The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
    • Violation of right to equality under Article 14: There were 4.78 lakh prisoners (as of December 2019) of whom 3.30 lakh were under trial, i.e. not yet proven guilty.
    • Yet, their fundamental rights — their right to liberty, freedom of movement, freedom of occupation and right to dignity — are curbed completely.
    • An “innocent” undertrial cannot vote, but a man chargesheeted for murder can even contest election from jail.
    • These blatant double standards are a clear violation of Article 14, which guarantees to all citizens equality before the law.

    Suggestions

    • ECI suggestion on vendetta politics: The ECI has suggested some safeguards against vendetta politics.
    • First, only offences that carry an imprisonment of at least 5 years are to be considered.
    • The case against the candidate should have been filed at least six months before the scheduled elections for it to be considered.
    • And finally, a competent court must have framed the charges.
    • Fast-track court: An alternative solution would be to try cases against political candidates in fast-track courts.
    • The Supreme Court had sent a directive in 2014, directing that cases against political candidates must be completed within a year, failing which the matter should be reported to the Chief Justices of the respective High Court.
    • This is a matter entirely in the judicial domain.
    • Barring political parties: The Supreme Court has, in the recent order stopped short of drastic steps by rejected the suggestion to direct the Election Commission to bar political parties that fail to comply with criminalisation protocols by using its authority derived from Clause 16A of the Election Symbols Order.
    • This step, the SC reasons, would be going too far and infiltrating the domain of the legislature.

    Conclusion

    The legislature and the judiciary need to do more to curb the menace of criminalisation of politics.

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