Criminal Lawmakers – will India ever rid them?

On August 9, 2018, a Supreme Court bench headed by Chief Justice of India (CJI) Dipak Misra hearing on a petition by a bunch of petitioners represented by senior Advocate Dinesh Dwivedi, who sought a direction to debar candidates with criminal background from contesting elections. The CJI asked Attorney General (AG) KK Venugopal how the rising tide of criminalization of politics could be arrested, even as Venugopal agreed with Dwivedi that Parliament would never enact a law to debar criminals from polls as parties preferred them as candidates since their win-ability was much higher than ordinary candidates.

The SC bench headed by CJI Dipak Misra told the petitioners that SC was was bound by the ‘Laxman Rekha’ which mandated constitutional courts only to declare the law and not legislate; direction from the court to debar tainted candidates from contesting polls would amount to legislation. Dwivedi argued it would not amount to legislating as there was vacuum in law on tainted candidates rifgts to contest polls. But the bunch responded that Article 102 of the Constitution and Provisions of the People’s Act provided grounds for disqualification from contesting polls and empowered only Parliament to add to it, even as SC recognized there was a geievance among citizens that criminalization of poliics was on the rise.

CJI Misra further said, “It is a serious issue. We have to remind Parliament that it has constitutional obligation to amend Article 102 (e). We say this as conscience keeper of the Constitution.” As per media, the AG took a “bold stand” on behalf of the Centre and said the SC “could” recommend to Parliament to enact a law debarring those against whom a trial court had framed charges in a hideous offence and she/he had exhausted her/his remedy to the SC, in seeking a stay. That ends the ping-pong between the SC and the Centre and effectively and individual (s) or organization from filing similar petition in anytime in future, knowing it will met a similar fate – end of story.

Last year, the Centre announced setting up 12 special courts to exclusively deal with cases against 1,581 tainted lawmakers in 2018, including two special courts to l handle cases against 228 MPs. This translates to 1125 cases to be decided by each special court in one year with special court disposing off 4.6 average number of cases daily considering trial courts generally function for 242 days in one year. Rs 7.80 cr were earmarked for the operation to be completed within 2018. The astounding fact revealed last year was that of 4120 MLA’s and 462 MLCs (total 4582), 1,581 lawmakers (including 228 MPs) faced serious criminal charges; implying one-third of the so called political cream of India are scoundrels. This number may have gone up with all political parties fielding candidates with criminal records in recently held Karnataka elections. Nothing known of the 12 special courts with seven and a half months of 2018 elapsed.

It is quite obvious that neither the Centre nor the SC is interested in changing the status quo. The 2019 general elections would see more criminal lawmakers. Political parties prefer candidates with criminal records because of their illegal riches and goon armies that can coerce and ‘muscle-in’ voters with threats, blackmail and physical acts. In effect from a ‘Government of the People, by the People, for the People’, we have transcended into becoming a ‘Government of the Criminals, by the Criminals, for the People’. So where do citizens of India go?

The “bold action” of AG in recommending SC “could” recommend to Parliament enacting suitable law is absurd with SC clearly saying action is to be taken by legislature (Parliament) – amend Article 102 of Constitution. SC recognizes citizen geievance of rising criminalization of politics but will not give any directions suo moto to the Centre as CJI and judges have to survive in the samr murky waters. Besides, Centre is openly telling the SC not to criticize government actions. If the SC could take suo mote cognizance and make recommendations to Centre in such matters, it woul have advised against Amendment to the Foreign Currency Regulation Act (FCRA) and ‘Money Bill’ without discussion in Parliament, both legalizing corruption at the highest level. Besides, why no minimium educational qualifications for contesting elections and why can someone in jail contest elections?

Can we as a nation ever get rid of criminal lawmakers and will the government act? The fear should be that while we are flashing figures of economy, development and job creation, there is nill attention towards galloping population levels. Should this remain unchecked and criminals continue to rule, we may be heading towards a situation like China’s ‘Great Laep’ where any amount of security surrounding the criminal rulers may not suffice, irrespective of collateral damage.

Prakash Katoch is third generation army officer hailing from Himachal Pradesh. He is former Lieutenant General from Special Forces and post-retirement has published over 2100 articles on international affairs, geopolitics, military, security, technical and topical issues besides authoring two books. He is active in seminars at both national and international levels.

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