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Supreme Court stand on Politicians with criminal record

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By Diksha Mehta-

A writ petition was filed in the Supreme Court regarding the ever-increasing criminalisation of politics in India and the lack of awareness of the people of the criminal cases against such politicians.

It seeked directions of the Court in the matter so that the citizens were aware of the criminal charges against an MP or MLA before they cast their vote in the elections.

The Supreme Court gave its judgment in Rambabu Singh Thakur v. Sunil Arora on 13 February, 2020 (2019) 3 SCC 224) laying down the directions to be followed by political parties and the politicians in declaring any sort of cases or pending enquiries against them.

In reference to this matter, another writ petition was filed by BJP leader and Advocate Ashwini K. Upadhyay which was heard on 10th and 16th September, 2020 seeking a declaration that any elected representative who has been convicted of a crime should be barred for lifetime.

Also, Special Courts should be established to dispose off cases related to such politicians and representatives within a period of one year.

WHAT IS CRIMINALISATION OF POLITICS?

Criminalisation of politics is not a new term. It is a part of every country, even India.

It means entrance of criminals into the political system of the country where people who have criminal record or criminal status are elected to the Parliament or State Legislatures as MP’s and MLA’s and are made a part of one of the most important pillars of democracy, i.e. the Legislature.

If not in this manner, one can say that there is definitely a certain nexus between politicians and criminals because they need each other’s support to stay in power.

Criminals need the help of politicians who hold high ranks and offices to continue their criminal activities and get away with it while politicians take their help to win elections through muscle power and money. It may even be termed as a symbiotic or an inter-dependent relationship!

CONTENTS OF THE WRIT PETITION

The writ petition entailed that certain amendments need to be made to the Representation of the People Act, 1951.

Also, Special Courts need to be set up to decide the pending cases relating to the tainted legislators, elected representatives, public servants as well members of the Judiciary.

Apart from this, the important electoral reforms as envisaged by the 244th and 255th Law Commission Reports should be implemented without further ado.

Lastly, it was demanded that any person convicted of an offence specified in Sections 8(1), 8(2), 8(3), 9(1) of the Representation of the People Act 1951 should be debarred from forming any political party, contesting elections or becoming office bearer of any political party.

All the High Courts were directed to furnish information as to pendency of cases relating to Legislators to the Supreme Court within a given amount of time.

AFFIRMATIONS OF THE AMICUS CURIAE

MR. VIKAS SINGH (10 September, 2020)

The learned Amicus Curiae, Mr. Vikas Singh submitted that presently, there were around 4,442 cases pending against legislators, both present and former.

He averred that 413 cases were related to life imprisonment and out of these, 174 were against currently sitting MP’s and MLA’s and there was inordinate delay in disposing off these cases.

Explaining the state-wise situation, he averred that in Uttar Pradesh and Bihar, there were cases pending relating to year 1991.

Furthermore, cases relating to 1981 and 1983 were pending in West Bengal and Punjab respectively. Also, in 352 cases trials have been stayed by either the High Court or the Supreme Court.

Citing the importance of hearing the cases expeditiously, he stated that there should be a Special Court for MP’s and MLA’s in every district.

The High Court may transfer cases against them to the Sessions Courts and Magisterial Courts to expedite their hearing and there should be prompt transfer of the case files to the respective courts.

The cases involving sitting legislators were to be given more importance than the former legislators and the forensic laboratories were to furnish reports in these cases to the Special Courts within a period of 1 month.

Further, delay or adjournment in hearing cases should only be done in extraordinary circumstances.

Laying down the order of hearing cases, he gave the following recommendations:

Stating the importance of the witnesses and victims, he submitted that all requisite measures should be taken to ensure that protection should be given to vulnerable witnesses.

It was even submitted that from the records, it was clear that the complete information regarding cases against legislators pertaining to the Prevention of Corruption Act, 1988, the Prevention of Money Laundering Act, 2002, Excise Act, 1944, Customs Act, 1962, Central Goods and Service Tax Act, 2017 and Companies Act, 2013 were not recorded.

The Bench lead by Justice N.V. Ramana observed that even though requisite time was given to all the High Courts to submit details of pendency of cases against legislators, only the High Courts of Karnataka, Madhya Pradesh, Tamil Nadu, Delhi, Jharkhand and Guwahati did so.

MR. VIJAY HANSARIA (16 September, 2020)

It was averred by him that on the basis of the submissions of the High Courts, there are about 175 cases under the Prevention of Corruption Act, 1988 and 14 cases are pending under the Prevention of Money Laundering Act, 2002 against sitting/former legislators.

He submitted that the States of Karnataka, Andhra Pradesh, Telangana, Madhya Pradesh and West Bengal had only one Special Court to deal with these cases. Also, there was no uniformity as to which Court was to hear the cases under these special Acts against the MP’s and MLA’s.

Even though a number of orders and directions had been passed by the Courts regarding hearing the pending cases against legislators since 2016, the backlog of these cases has not declined.

One of the reasons for this is the stay on hearing by the Courts themselves. Secondly, the number of Special Courts to deal with these cases is insufficient.

Alarmingly, in some cases the investigation is stopped mid-way before they reach any legitimate conclusion and in some cases, even the chargesheet is not registered!

Suggesting measures to combat the situation, he averred that Special Courts should be set up in each district and expedious trials should be conducted to conclude the cases within a period of one year

He further laid down the hierarchy of cases to be heard:

He went on to state that the judicial officers sitting in these Special Courts should have a minimum tenure of 2 years and priority should be given to the cases against sitting legislators.

Lastly, the Court observed that the various orders that have been passed time to time by this Court were to ensure that criminal suits against legislators (MPs and MLAs) are concluded expeditiously.

The Court was of the opinion that such special consideration was required not only because of the rise of criminalization that was occurring in the politics in the country, but also due to the power that these legislators (sitting or former) exercise, to influence or obstruct effective prosecution.

Additionally, as legislators are the repositories of the faith and trust of their electorate, there is a necessity to be aware of the antecedents of the person that is/was elected. And these proceedings are to make sure that democracy of such institutions is given utmost status.

CONCLUSION

The need of the hour is to establish a system that can freely and successfully tackle the problem of criminalisation of politics in India.

The politicians who have a tainted and criminal background should not be allowed to compete in elections at all. Inclusion of such people in the political system is the deathkneel of democracy.

Several changes have been suggested by various committees and even the Law Commission of India but its benefit lies only in its execution.

Detailed information of candidates need to be disclosed so that the citizens of India know who they are choosing as their representatives and the first step towards a decent political system is following the directions of the Judiciary!