Why Supreme Court asked how can convicts barred from electoral politics decide candidates
The Supreme Court's observation - as to how convicted persons who are barred from electoral politics can decide candidates in polls and ensure maintenance of probity in public life - has still not come too late, considering the present government and political parties still have about a year to rectify this before the general elections in 2019.
The apex court, which was hearing a PIL seeking that convicted persons be restrained from forming and holding posts in political parties for the period they are disqualified under the election law, has now posted the matter to May 3 for final disposal. It is indeed strange that a person who is convicted and is disqualified from contesting an election are allowed to decide candidates for elections to legislative bodies of the country besides other non-legislative entities.
"Here is a person who is convicted and disqualified from contesting an election. How can he decide the candidates for election? How the purity of democracy can be maintained," the bench headed by chief justice Dipak Misra rightly asked.
Although in a lighter vein, the bench, also comprising justices AM Khanwilkar and DY Chandrachud, observed that such convicted politicians can always form an "association of convicted persons". "...as they cannot contest elections being constitutionally restrained, we have enough informal associations of their unholy alliances already working freely mostly in the liquor, land, real estate, mines mafias and a few more not deserving bracketed place with these." The bench has asked both the parties to submit their written submissions on May 3. Additional solicitor general Pinky Anand, appearing for the Centre, referring to the affidavit is reported to have said that no person can be barred from creating a party and holding posts in such an organisation.
The PIL was filed by lawyer and BJP leader Ashwini K Upadhyay seeking that convicted people be restrained from forming political parties and becoming office-bearers during the period they are disqualified. Senior advocate Vikas Singh, appearing for Upadhyay, has highlighted that 40 per cent of the legislators are either convicted or facing trials.
The apex court on December 1 last year had sought the response of the Centre and the Election Commission on the PIL and agreed to examine the constitutional validity of section 29A of the Representation of the People Act (RPA), 1951 (RPA), which deals with the power of the poll panel to register a political party.
The plea said convicted politicians, who are barred from contesting elections, can still run political parties and hold posts, besides deciding as to who will become a lawmaker.
It has sought a direction to declare section 29A of the RPA as "arbitrary, irrational and ultra-vires" to the Constitution and to authorise the poll panel to register and de-register political parties.
The petitioner has also sought a direction to the Election Commission to frame guidelines to decriminalise the electoral system and ensure inner-party democracy, as proposed by the National Commission to Review the Working of the Constitution (NCRWC).
The petition very logically underlines that in the subsisting scenario even a person convicted of crimes as heinous as murder, rape, smuggling, money-laundering, loot, sedition, or dacoity can also form a political party and become its president or office-bearer.
In addition, it has also been a known fact that as of now no more than 20 per cent of registered political parties have been contesting elections with the remaining nearly 80 per cent apparently engaged only in raising funds for their individual uses or supporting other parties/candidates.
This obviously creates excessive load on the electoral system and public money. The plea also claimed that in 2004, the poll panel had proposed an amendment to Section 29A, authorising it to issue apt orders regulating the registration or de-registration of political parties, which too needs to be addressed concurrently now.
As per recent media reports based upon a central government's affidavit filed with the Supreme Court, over 1,750 lawmakers in Parliament and state assemblies have been facing cases of criminal offenses between 2014 and 2017.
The affidavit was filed after the SC asked the Centre last November to create special courts for speedy trial of litigations pending against our elected representatives.
As per individual declarations made by winners of last Lok Sabha elections - 186 MPs out of 541, that is 34 per cent, of the victorious lot had one or the other case pending against them.
Perhaps, if one looks at the similar record of losers too, the overall percentage of the citizens with such records in race for legislative or constitutional positions may even surpass 50 per cent. And not to discount where misleading or false affidavits about factual personal history may also have slipped through the process. It is strange that even 70 years after Independence we are continuing to live with such loopholes in laws.
On the one hand, it requires an applicant for any government job to come clean on convictions or criminal proceedings, as majorly practiced by most of the leading MNCs/organised private sector houses for hiring. On the other, it allows such dominant political roles to tainted persons to ensure administrations of their choice.
While the best of our brains in engineering, technology, medicine, science, law and even in bureaucracy are doomed to retire by 58-65 years, there is no such age limit for politicians to hold a seat in any of the legislatures. Even a small-time helper required for a part-time or full-time job in a residential society has to undergo more stringent checks than the ones seeking entry into the political set-ups of our registered parties.