Time and again Indian Judiciary has proved itself to be the best guardian of the Indian constitution. From declaring non amendability of the basic structure to restricting the applicability of the emergency provisions, Judiciary has kept the legislature and executive well within their limits.
But recently SC observed that, “Politicians with Criminal Antecedents cannot be permitted to be law- makers, but our hands are tied”.
This statement solidifies the fear that the justice system is incapable of giving true justice. If not the judiciary, then who? Is the question that every common man is left to ponder upon.
We are well aware that to protect and preserve the spirit of our constitution, the judiciary has been entrusted with wide power, which is further expanded through exercise of judicial activism and judicial review.
But the bitter truth lies in the fact that our judiciary has failed in the upkeep of the very spirit of our democracy, by letting politicians, with severe and heinous criminal antecedents manage the political systems.
This issue of criminalisation of politics has penetrated to such depths in our country that if urgent reforms are not made now, then the question of how to curb them will no longer be relevant.
PRESENT INDIAN SCENARIO
According to ADR’s report the members of parliament and legislative assemblies charged with criminal offences are soaring high every year. The total numbers of M. P. s and M. L. A. s from different political parties are 4,807, out of which 1,460(30%) and 688(14%) are involved in serious offences.
Needless to say, this dangerous reality which would not be far off, when the doctrine of rule of law would take the form of rule of law breakers. Thus causing a devastating effect on the world’s largest democracy.
BLATANT ATTACK ON DEMOCRACY?
Democracy is the rule by people through their elected representatives, by the way of free and fair elections. Free & fair elections are the essence of democracy, thus they form a part of the basic structure of our constitution. Though India prides in being the world’s largest democracy, has it successfully upheld its true nature? The people must be given a fair choice. A chance to choose their representatives among the virtuous candidates, who would be their voice and fight for their rights. But if you are given a choice to elect between a candidate who is accused of murder and one accused of attempt to murder, is it really a choice? The lust of power has corrupted the politicians to such extremes that they either become criminals or take criminal support to win elections. The makers of our constitution had great hopes for the future of our country, when they righteously declared India to be a Sovereign, Secular, Socialist, Democratic Republic. But even after 75 years of Independence, the achievement of these ideals is a far-fetched reality.
PRESENT LAWS DEALING WITH THE ISSUE
Section 8 of Representation of People’s Act (RPA), 1951 provides grounds for disqualification of MPs and MLAs on conviction of certain offences. But the disqualification mentioned in (1),(2) and (3) of section 8 will not take effect if the convict appeals to the higher court within 3 months of the order of disqualification. With the help of such provisions and the time consuming legal proceedings, these convicted MPs and MLAs continue to occupy their seats in the house for the remaining term, thus bypassing the very law that was made to stop them. There is a need to give a wider interpretation to the provisions of this act, as its literal interpretation will not serve its true purpose. By limiting the application of the disqualification to a convicted person only, it will render the persons accused and under trial for heinous offences to be free to contest and win elections. The lacunae in these systems are used by the criminals to slither into the political stream, seize the voters and poison our political framework. IS SECTION 8 OF RPA,1951
VIOLATIVE OF ARTICLE 14?
Article 14 provides that equals must be treated equally while unequals must be treated differently. For this purpose the legislature makes classification, which is required to be reasonable and not arbitrary. Section 8 of RPA exempts the entire class of accused persons from the disqualification and gives those accused of heinous crimes an equal footing with those accused of minor ones, thus leading to victim playing by the major criminals. Interestingly, where a convicted person is disqualified from contesting elections for a period of 6 years, the accused charged with the similar offences would be free to contest and win the elections, thus mocking our democracy. This exemption is arbitrary and unreasonable, thus violative of article 14 of the constitution. In Shashikant Laxman kale v. union of India, the SC held that “The court must look beyond the ostensible classification and to the purpose of the law, and apply the test of “palpable arbitrariness” in the context of the felt needs of the time and societal exigencies informed by experience to determine reasonableness of classification.” In Mohd. Usman v. State of A.P,the SC held that “The validity of the rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the court has to see is whether after taking all aspects into consideration, the classification is just.” Thus even in case of criminalisation of politics it is the need of the hour to make reasonable classification between the accused persons and prevent them from using the escape clauses in the act. Whether the judiciary has contributed sufficiently towards this issue? Time and again the judiciary has been encountered with the question of criminalisation of politics. However, it has not utilised the opportunity to take a firm stand and terminate this menace once for all. In 2014 in the case of Manoj Narula V. UOI the question whether persons with criminal antecedents or those accused of heinous crimes were fit to be appointed in central and state governments arose before the SC. However, the court left such appointments to the discretion of the Prime Minister. Further in 2018 In Public Interest Foundation v. UOI, the petitioners demanded persons with criminal antecedents to be disqualified from contesting elections and sought the court to pass certain guidelines for the same. The SC refused to interfere with the matter on the grounds of separation of power but advised the parliament to make the necessary laws. At the same time the court issued certain guidelines to ensure that voters make informed choices about their representatives, as informed choices form the cornerstone of a ‘strong and pure’ democracy. Court asked the candidates to fill up forms containing all particulars of their criminal antecedents in bold, inform their respective political parties of the pending criminal charges against them, upload these records on the party website and widely publicise, both in press & media the criminal antecedents of the candidates. In 2020 in the case of Singh Thakur v. Sunil Arora, contempt petitions were filed against the election commission of India for not keeping a check on whether parties were adhering to the guidelines given by the SC in 2018. The court reiterated the 2018 guidelines, but failed to go any further. Finally in 2021 in case of Brajesh Singh v. Sunil Arora & Ors. The question of whether the courts could issue directions on matters that do not have any foundation in the statutory provisions and the mandatory adherence of the guidelines of 2018 by the political parties arose before the SC. The court acknowledged the violation of the guidelines by the political parties but expressed their helplessness by stating their hands are tied in regard to this matter and could only guide the legislature to take appropriate measures. Formation of laws is a function of the legislature, the judiciary can only ask them to do so and not do it for them.
HOW JUDICIAL ACTIVISM CAN PLAY AN IMPORTANT ROLE
Judicial activism empowers the court to keep a Hawkeye on the executive and legislature actions and render those violative of the constitution as void. Now the questions which come to light are whether the applicability of judicial activism is limited only to the “actions” of the legislators or does it extend to their “omissions’’ as well? What if omission to make necessary legislation prove to be catastrophic to our rights and interests? Can the guardians of our constitution fail to uphold the rule of law and justify its helplessness? The Judiciary has failed to utilise their power of judicial activism to its true potential and has succumbed to the dirty politics played by the legislators. There were numerous instances where the judiciary faced issues due to incompetence or laguna in the laws , which failed to meet the required purpose of their enactments. But by using the lens of judicial activism the courts succeeded in upholding the constitutional mandates and objectives of the legislation. In the case of Vishakha vs state of Rajasthan the SC directed that the guidelines in relation to sexual harassment at workplace to be treated as law under article 141 of the constitution, as a result of absence of any legislation in that regard. It was to be followed judiciously till the legislature enacts the required laws. Such cases illustrate the important role played by the court through judicial activism. The case of Keshananda Bharati vs state of Kerala, SC mentioned the doctrine of basic structure of the constitution. It is paramount to note that the constitution nowhere mentions the concept of basic structure, but the court used the flourishing notion of judicial activism to highlight the importance of the doctrine and safeguarded our salient rights. Similarly in the case of decriminalisation of politics, by utilising the scope of judicial activism, the judiciary should mandate obedience to their guidelines until the legislature makes appropriate laws to deal with the issues. The courts should contemplate that while framing section 8 of the RPA,1951 the object of the legislature was to keep the criminals at bay from our political system. However, with the rapidly changing socio-political scenario of our country, the courts should give wider interpretation to the provisions of this act. To achieve its true purpose, the courts should suggest the necessary amendments, Like distinguishing between persons accused of heinous and trivial crimes, so as to disqualify the former to contest elections until the trial is concluded and prevent hard core criminals from entering the politics through existing loopholes in the legislation. Suggestions and conclusion. The Judiciary has been entrusted with the enormous task of upholding the constitutional values. It takes the assistance of judicial activism and judicial review to handle this tremendous responsibility. Unfortunately with regard to the issue at hand, the judiciary has restricted the scope and applicability of its powers. This ever rising plague of political criminalisation can never be uprooted without an active judicial role. There is no better time than now to end this injustice. The courts should consider disqualifying the persons convicted with the offences punishable for 5 years and more for the entire duration of the trial. Determining whether a person should be disqualified on such a basis must be decided in a summary trial, so that it provides a safeguard to the persons under trial due to false charges. In 2018, the Election commission of India in its reports made similar observations and highlighted the need for such amendments to deal with this ever growing threat to democracy. Therefore the implementation of the recommendations of the election commission and reasonable classification of accused persons for the purpose of disqualification is the need of the hour. The classification of persons accused of heinous offences, in light of judicial observation, would go a long way in curbing the menace of criminalisation of politics at its very source. The hands of our courts can never be tied as an independent and free judiciary is the crown jewel of our constitutional republic.