iconimg Saturday, September 05, 2015

Karan Thapar
July 21, 2013
The recent spate of judgments by the Supreme Court and Allahabad High Court suggests a determined attempt by the judiciary to cleanse Indian politics. The popular response is one of welcome. But do we need to consider the judgments more carefully? If you do, you might have reason to think again.

Let’s start with the three Supreme Court judgments. First, a direction to the Election Commission to frame guidelines to regulate election manifesto ‘freebies’ as well as a call for legislation to this effect. Was this a case of the Supreme Court overreaching itself?

After admitting it cannot rule “on what kind of promise can or cannot be made” it chose to direct the Election Commission to push through what it could not do itself. That, itself, is odd.

More importantly, the Supreme Court’s raison d’etre that election promises damage a level playing field essential for free and fair elections isn’t true. Promises are free and anyone can make them. And a small party can be as extravagant as a large one in any competitive offering of promises.

Finally, whether they are mixer-grinders or mangalsutras, colour TVs or cattle, it’s demeaning to assume the electorate will be tempted to the extent of determining how it votes. Of course, freebies should be discouraged, if not dispensed with altogether, but that’s not for the Election Commission or legislation to do. It’s best left to the pressure of public opinion and concerns of moral propriety.

Second, the Supreme Court’s ruling that subsection 4 of Section 8 of the Representation of People Act is unconstitutional and sitting legislators must be disqualified from the moment of their conviction. Prima facie this sounds right. It strikes the moral note we want to hear. But think more carefully and you might have doubts.

What happens if the conviction is overturned on appeal? The punishment will have been meted out but the recipient is innocent! And, if the government has a razor-thin majority this could affect its stability.

This is why a constitutional bench in 2005 upheld subsection 4 of Section 8. Was a smaller bench right in overturning that 8 years later?

Third, the Supreme Court judgment declaring that any one in lawful custody, including under-trials, is disqualified from contesting elections. The court’s argument is if you can’t vote you can’t contest. However, these people are innocent.

Not only are they not convicted many may not even be charged! This also means another George Fernandes, who fought and won in July 1977 from jail, is impossible. That, alone, diminishes our democracy.

Beyond moral concerns, this judgment can be used to foist false cases to disqualify those you may not be able to electorally defeat. This is, possibly, an invitation for vendetta.

Finally, the Allahabad High Court order banning caste rallies in Uttar Pradesh. Again, this sounds right. But, once again, think carefully and you could disagree.

A rally is part of freedom of expression as well as freedom of assembly. Under our constitution these freedoms can be curbed only for specific reasons. The one that could apply is law and order. But if a rally is intended to promote the welfare of specific castes, rather than provoke violence, that can’t be the case.

Mayawati and Mulayam may have rushed to comply but is the ban strictly constitutional? In fact, that question applies to the three Supreme Court judgments as well.

Clean our politics we must but these judgments might not be the best way of doing so.

Views expressed by the author are personal