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A political class in hiding

Amid attempts to scuttle or dilute laws that promote transparency in party funding and keep criminals out of the executive, Nagendar Sharma takes a look at India’s evolving democracy.

delhi Updated: Sep 22, 2013 01:37 IST
Nagendar Sharma

The twin issues of criminalisation of politics and transparency in the funding of political parties have taken centrestage in public discourse over the past three months, following a series of judicial verdicts and a ruling by the Central Information Commission (CIC).

Since June, political parties have displayed a rare unity in fighting the CIC ruling, which stated that political parties fall within the ambit of the Right to Information Act, and in battling Supreme Court judgments ordering for the immediate disqualification of MPs and MLAs convicted of criminal offences punishable with more than two years in jail and barring those in lawful custody from contesting elections.

The fracas over the recent rulings, from within India’s political class, is an indication of why, for 15 years, the Election Commission has been fighting a largely-losing battle for electoral reform.

Despite active support from civil society groups, and despite repeated assurances from successive union governments.

Read:It is essential for our democracy that convicts be kept out of office, says former solicitor general Gopal Subramanian

The UPA II’s own 2010 internal consultation paper on electoral reform proposed barring candidates from contesting elections if they have been charged by a court in a heinous crime that carries a jail term of more than five years.

Nonetheless, the truth of the matter is that the views of the EC and those of the political class are quite divergent on the issue of reform.

The foundation for this reform already exists.

According to clauses of the Representation of the People Act, 1951 (commonly known as the RP Act), a person convicted of an offence that carries two or more years in prison is to be disqualified from contesting elections for a period stretching from the date of conviction through six years after his release.

Civil society groups — led by the Association for Democratic Reforms, which is leading the campaign for decriminalisation of politics — take this a step further, arguing that those against whom charges have been framed in a criminal case where a conviction would disqualify them under the RP Act should be barred from contesting elections.

Still more strident voices argue that the mere registering of an FIR with the police should be enough to disqualify the alleged criminal concerned from contesting elections.

Amid the debate, on July 10, the Supreme Court struck down a provision in the RP Act that provides protection to serving MPs and MLAs from disqualification even if they are convicted by a court. This gave a completely new dimension to the fight for electoral reform.

The apex court judgment, now the law of the land, made it clear that Parliament had no power to provide protection to an MP and MLA from being disqualified merely on the grounds that he or she had filed an appeal in a higher court; the judgement stated in no uncertain terms that they could not continue to hold their position until the appeal was decided.

This judgment, which has far-reaching consequences and was described by analysts as a game-changer, evoked strong reactions, both in its favour and against it.

Jurists and activists welcomed the ruling, while the political class viewed it with suspicion and some parties even termed it a clear case of judicial overreach.

Former Chief Justice of India VN Khare welcomed the judgment in principle, but said it required more clarity. “Disqualification of an elected representative on being convicted is quite fair, but what happens in case he or she is acquitted by a higher court,” he says.

“Perhaps the seat of the convicted MP or MLA could be kept vacant for a fixed period, ranging from six months to a year, within which the appeal could be decided by at least one court.”

Veteran lawyer and former law minister Shanti Bhushan termed the verdict perfect. “This judgment actually settles the debate on electoral reforms and provides the most practical solution. It is the middle path for everyone concerned with the subject. Once convicted, you have no right to represent the public,” he says.

Major national political parties, which wanted the judgment reversed immediately after it was delivered and began working immediately on an amendment in the RP Act, appear to have tempered their positions after sensing the public mood.

Though the amendment bill to restore the right of those in custody to contest elections was promptly passed by both Houses, and the Supreme Court judgment on the subject thereby reversed, on the issue of allowing convicted MPs/MLAs to continue, the apex court verdict seems to have provided a solution… for now.