This article is written by Sanjeev Sirohi, an advocate in Meerut.
In a first, the Supreme Court which is the highest court of our country has very clearly directed the Centre to constitute special courts to exclusively try criminal cases involving politicians. A Bench of Supreme Court comprising of Justices Ranjan Gogoi and Navin Sinha have in their considered opinion held that, “In so far as setting up of Special Courts are concerned, setting up of Special Courts and infrastructure would be dependent on the availability of finances with the States…the problem can be resolved by having a central scheme for setting up of courts exclusively to deal with criminal cases involving political persons on the lines of the Fast Track Courts which were set up by the Central Government for a period of five years and extended further, which scheme has now been discontinued. Scheme to give effect to the above may be laid before the Court on the next date fixed, indicating the amount of funds that can be earmarked for setting up of Special Courts.” Centre must comply with what Supreme Court has said as soon as possible so that politicians with criminal background are shunted out permanently from politics at the earliest.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench which was hearing a petition filed by BJP leader Ashwani Upadhyay seeking life time bans on convicted politicians from contesting elections, accepted Additional Solicitor General Atmaram Nadkarni’s request to give the Centre six weeks to submit details of the scheme. The matter will now come up for hearing on December 13. There is lot of merit and force in what Ashwani is seeking from Supreme Court and there is no valid reason why life time ban should not be imposed on convicted politicians.
It cannot be lightly dismissed nor would it be out of context to mention here that the Election Commission too on November 1 has proposed life ban for MPs/MLAs convicted in criminal cases in view of the rising trend of criminalization in politics. Presently we see how just a six-year ban is imposed on convicted politicians under the Representation of People’s Act. Politics has become a den for criminals and to purge this den from criminals, it is imperative that they are punished with life ban if they are convicted.
What is most perplexing is that on such a contentious and all important issue which can throw out all convicted politicians permanently from politics we see the unpalatable truth before us that Centre has chosen to remain non-committal. Additional Solicitor General Atmaram Nadkarni told the court that the recommendations of both the Election Commission and the Law Commission of India were pending with the Centre. However, it is a matter of some consolation that on the other key issue of fast-tracking trial against tainted politicians we saw a unanimity between the Election Commission and the Centre with both in favour of setting up of Special Courts.
It is noteworthy that by a rough estimate, the Centre said about 1,000 courts would have to be set up. The Bench told the Centre to first frame the scheme and allocate funds following which States could follow suit by setting up the infrastructure required to try criminal cases against MPs and MLAs. The Additional Solicitor General Atmaram Nadkarni agreed to frame the scheme before December 13 which is the next date of hearing.
Be it noted, senior advocate Meenakshi Arora while appearing for Election Commission, informed the Bench that the Election Commission was in “support” of a life ban on convicted MPs/MLAs who stand disqualified for 6 years on their conviction in a criminal case punishable with a sentence of two or more years as stipulated under Section 8(3) of the Representation of the People’s Act, 1951. She said that the Election Commission had recommended so to the Centre with a view to curb the growing criminalization of politics. It is because of criminalization of politics that we see that criminals are able to manipulate everything in their own favour as they wield the keys to the corridors of power which is most dangerous and concerning!
Truth be told, during the hearing, the Centre drew the Apex Court’s ire for saying that though it was in favour of special courts trying cases against politicians and their speedy disposal, the constitution of such courts was primarily the responsibility of the states. Justice Ranjan Gogoi spared no punches in hitting out at Centre by saying that, “You say you have no opposition to fast track courts. Same time you say states have to set up… On one hand, you are making a commitment and at the same time, you are washing your hands off.” The Apex Court also referred to a report submitted to it by an NGO associated with electoral reforms named Association of Democratic Rights which disclosed names of 1581 MPs/MLAs facing 13,500 criminal cases in the present Lok Sabha and State Assemblies.
Be it noted, the Apex Court also asked Centre to inform it about the status of these 1581 criminal cases pending against lawmakers at the time of filing nominations to the 2014 elections. It also must be recalled here that in an order dated March 10, 2014, the Supreme Court had directed that the cases against legislators be expedited and disposed within a year. The Apex Court minced absolutely no words in asking this most categorically that, “How many of 1581 cases involving Members of Legislative Assembly (MLAs) and Members of Parliament (MPs) (as declared at the time of filing of the nomination papers to the 2014 elections) have been disposed of within the time frame of one year as envisaged by this Court by order dated 10th March, 2014 passed in Writ Petition (Civil) No. 536 of 2011. How many of these cases which have been finally decided have ended in acquittal/conviction of MPs and MLAs, as may be?”
As it turned out, the Bench also wanted to know if any new criminal case had been lodged against any present or former MP or MLA between 2014 and 2017 and its status. Underlining the dire need for Special Courts, Justice Ranjan Gogoi referred to the workload of trial courts across the country. At any point of time, each court was handling as many as 4200 cases, Gogoi said. He also added that, “But 4200 is much above optimal. Even if the Supreme Court says that the courts should dispose of cases in one year, that will be possible only if these courts were handling cases involving lawmakers and nothing else.”
Truly speaking, the Judges did not favour the suggestion that the proposed Special Courts be clubbed with other designated courts like CBI courts. It must be made mandatory for all candidates contesting elections that they should declare their assets and list criminal cases against them, if any and the latest position of those criminal cases whether they have been declared guilty or is still just pending. No doubt, it is a matter of grave concern that criminalisation of politics is increasing very rapidly and still they are not barred permanently from contesting elections.
It would be pertinent to note here that the Supreme Court on October 31 sought to know the rate of conviction of politicians in criminal cases and asked whether its direction to complete trial against them within a year was being effectively implemented. The Apex Court said that data about the conviction rate of politicians in criminal cases would open up a “new dimension” and sought to know whether it would act as a “deterrent” if the trial against lawmakers is completed in a year. Very rightly so!
As things stand, a Bench of Justices Ranjan Gogoi and Navin Sinha said that, “We would also like to know what is the rate of conviction. That will throw open a new dimension. We will see that criminal cases against politicians, if it does not end in conviction, then why? What are the reasons for it?” The top court made these observations while hearing petitions seeking to declare the provisions of the Representation of People (RP) Act, which bar convicted politician from contesting elections for six years after serving a jail term, as ultra vires to the Constitution. Referring to data, the counsel claimed that an estimated 34 percent of Parliamentarians had a criminal record.
Interestingly enough, the Bench observed that a direction was earlier passed by the top court that trial against politicians should be completed within a year and wanted to know how effectively was that order being implemented. The court also asked what would happen to a Judge when charges were framed against him or an FIR lodged. To this, the counsel replied that, “The court has laid down such a high and rigorous standards for Judges. If this is the position in the case of Judges, why can’t the same be there in case of politicians.”
While there can be no denying that the setting up of Special Courts to try criminal cases is a good step but it must be also ensured that adequate Judges are appointed for deciding such cases and they are fast tracked and all necessary infrastructure is provided to achieve the aforesaid purpose. Only then will the setting up of Special Courts will serve the desired purpose. Even Supreme Court itself had said that, “It takes years, probably decades, to complete a trial against a politician. By which time, he would have served as a minister or legislator several times over.” This is what needs to be checked and this is what that is most concerning.
Needless to say, Justice Ranjan Gogoi in his preliminary remarks, observed that all these issues of life-time ban on convicted politicians, implementation of earlier court orders that mandated time bound disposal of such cases and automatic disqualification of convicted lawmakers can be addressed if cases against politicians are dealt by Special Courts exclusively set up for the purpose. He said that, “There are only 17,000 courts in India. Once the Special Courts finish their work, they can continue functioning as normal courts. A thousand courts more are welcome….You have to appoint public prosecutors, provide infrastructure.” Very rightly said! No denying or disputing it!
According to the Department of Justice, more than 6.5 lakh cases are pending in fast track courts in the country. This is quite a whooping figure. It should be reduced to a bare minimum. Out of these cases, there are about 1500 in Delhi alone. Without adequate infrastructure and qualified Judges, these fast track courts are ill equipped to deal with such a huge volume of cases. Therefore, what must be first and foremost addressed is proper infrastructure and adequate qualified Judges. Only then will the fast track courts serve their true purpose and ensure that politicians don’t exploit our snail paced judicial system in their own favour.
Why so much of leniency is shown towards politicians alone? Why when a person is disqualified from becoming a Judge or IAS or IPS or joining Army or any other government service even if someone registers a false case then why are politicians alone exempted from it and are given the long rope to label it as “politically motivated”? Why is it not appreciated that considering the palpable truth that politicians are the basic pillars of governance who exercise control over police, bureaucrats and all other services and people also look on them as their ideal then why should criminals be allowed entry in politics at the first place?
This is the root cause of rapid criminalization of politics and politics becoming the den of criminals. This has a pervasive effect on all other services and on our society as a whole which is always sought to be ignored. We have seen how even dacoits and mafias are easily able to enter politics by power of their money and muscle and then make a complete mockery of our entire democratic system. Should this be allowed to happen at the first place? The unpalatable truth is that we have allowed this right under our nose since the last 70 years! How can those charged with rioting, murder, attempt to murder, rape, gang rape, corruption, forgery and cheating etc be ever loyal in discharging his duties as MP or MLA? But what a pity that they have always been exempted instead of setting the highest bar for them. This under no circumstances can ever be justified. All said and done, there has to be zero tolerance for criminalization of politics. There can be no compromise on this under any circumstances. On a concluding note, it must be said that the Supreme Court has rightly directed Centre to set up Special Courts to try politicians in criminal cases and Centre must do it on a war footing!
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
