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Home / Opinion / SC verdict on decriminalisation of politics prioritises morals over myth of winnability

SC verdict on decriminalisation of politics prioritises morals over myth of winnability

Extending a 2018 judgment, the SC directed political parties to publish criminal backgrounds of their candidates not just on their official websites, but also in local newspapers and social media within 48 hours of their selection or two weeks before the first date of filing of nominations, whichever is earlier.

opinion Updated: Feb 14, 2020 03:14 IST
S Y Quraishi
S Y Quraishi
People queue up to cast their votes during Delhi assembly election  on February 8.
People queue up to cast their votes during Delhi assembly election on February 8.(Sushil Kumar/HT File Photo )

Yet again, the Supreme Court has expressed concern about the criminalisation of politics, directing political parties to publicise the criminal cases pending against their candidates in parliamentary and assembly elections. The order has come on a contempt plea filed by Ashwini Upadhyay, a Bharatiya Janata Party (BJP) leader who has been a relentless campaigner for electoral reforms.

Extending a 2018 judgment, the SC directed political parties to publish criminal backgrounds of their candidates not just on their official websites, but also in local newspapers and social media within 48 hours of their selection or two weeks before the first date of filing of nominations, whichever is earlier.

The following additional measures will reinforce the directions of the court’s earlier judgment:

(a) the party must explain the reasons for nominating candidates with pending criminal cases on its website; (b) failing to file a compliance report with the Election Commission of India (ECI) in 72 hours would be tantamount to contempt of court by political parties.

These indeed constitute a tougher stance adopted by the Supreme Court, given that in the past two instances it had either delivered a lukewarm judgment (2018) or recused itself from “entertaining” a similar petition (2019). The recent directions are certainly better than the former wherein it ordered, among other things, candidates to write pending criminal cases against them in bold letters in their nomination papers. Despite the candidates’ compliance, the effectiveness of the move was as feeble as the health warning on cigarette packets, which too are written in bold letters with pictorial warnings covering 85% of the box!

Importantly, the court has sought to bust the argument of “winnability” of candidates, underlining the importance of merit, and remarked, “Winnability cannot be the only reason for selecting a candidate with criminal antecedents”. The argument of winnability is half-baked for, if provided a cleaner alternative, the voters always vote for the candidate with a cleaner background, according to the Association for Democratic Reforms.

It is significant that the judgment has prioritised morals over the myth of winnability.

After a sharp increase in the number of MPs with serious criminal cases against them in the last four general elections -- 124 (2004), 162 (2009), 185 (2014) 233 (2019) -- the Supreme Court is correct to point to the “alarming” rise in the criminalization of politics. But the court has yet again consciously stayed within the boundaries, stopping short of banning candidates with pending criminal cases from contesting elections as demanded by the petitioner in the case and the Election Commission consistently for over two decades.

Political parties have been at the vanguard of opposition against any attempt to cleanse the Indian political arena. The most common argument posed by them has been the misuse of vendetta politics—ironically reflecting the nature of their own political play.

They conveniently miss the safeguards suggested by the Election Commission of India: (a) only heinous offences that carry at least five years’ imprisonment would invite a ban against contesting; (b) the case must have been filed at least six months before elections; (c) only when the charges have been framed by a court would a ban be enforced.

The other argument put across by the parties is the noble principle in the criminal justice system—“innocent until proven guilty”. They have no answers when I help them recall that there are 270,000 under-trial prisoners, not yet convicted, languishing in jails for years with as many as four fundamental rights (liberty, freedom of movement, freedom of occupation and right to dignity) conveniently taken away, in addition to the right to vote.

At a time when civil liberties to protest peacefully, a fundamental right under the Constitution of India (Article 19), are being infringed upon by the executive of the day, with our judiciary silently watching, all in the name of national interest, why is the Court shying away from barring criminally charged candidates from contesting in wider national interest? If a fundamental right under Article 19 can be kept aside in wider national interest, why not the right to contest an election, which is not even a fundamental right? The Supreme Court once upheld the importance of the principle of institutional integrity in a case involving the Central Vigilance Commission (CVC). So where is the institutional integrity of the supreme institution of democracy, our parliament, with 43% of its honourable members tainted with criminal cases?

This upsetting reality has been reflected in the Democracy Index 2019 by the Economist wherein the world’s largest democracy has recorded the sharpest fall since 2006 to find itself at 51st rank, with the tag of a flawed democracy. If the trend continues, we are not too far from the tag of hybrid democracy, the next ladder of the Index, while we continue to protect our honourable tainted politicians under the legal maxim “innocent till proven guilty”.

(SY Quraishi is former Chief Election Commissioner of India and the author of ‘An Undocumented Wonder - The Making of the Great Indian Election’ The views expressed are personal)