There is a sense of
nervousness among the politicians following Supreme Court decisions to bar
criminals from contesting elections and disqualification of elected Member of
Parliament and State Legislature on conviction by trial court.
I would first take up
the verdict that bars anyone from contesting elections if he or she is in jail
or in police custody. The apex court’s judgment briefly is based on the premise
that if someone can’t cast vote (not an elector) he or she can’t contest
elections. There have been many instances in the past when Politicians big or
small have contested polls from behind the bar some of them even winning the
seat. Apprehensions are that ruling party may abuse its power to falsely
implicate rivals in criminal case on the eve of elections if the ruling party
feels that a particular candidate is likely to defeat the ruling party’s
nominee in the polls. Thus, the rival candidate will be eliminated from the
race much before the race begins.
The government is
studying the judgment and may prefer to go in for an appeal before a full
Constitution Bench of the Supreme Court for review of the verdict. Some jurists
including Mrakandey Katju, former judge of the Supreme Court who is currently
Chairman of the Press Council of India on Saturday expressed his disagreement
with the Supreme Court verdict. Katju said that “ … it is not for the judiciary
to make law”. True, the job of making law by enacting legislation and amending
existing law of the land rests with Indian Parliament and in some cases with
the Legislative Assembly of the State that is with the Members of Parliament
and Members of State Legislative Assembly.
But at the same time one
should not forget that our Constitution has given ample scope and power to the
higher judiciary – the High Courts and the Supreme Courts to interpret law and
the Constitution. Any law or legislation which is ultra virus of the
Constitution can be repealed or held null and void.
Here the Supreme Court
has given new interpretation of certain sections of the Representation of the
People Act. Section 4 and 5 of the R P Act says inter alia that in order to be
elected to Parliament or State Legislature a person has to be an elector. If a
person is in jail or police custody he or she can’t cast vote and thus, he or
she is not an elector, hence can’t contest polls.
The government has the
options to challenge the verdict before a full bench of the Supreme Court or
alternatively it can amend the Representation of the People Act to nullify the
verdict. In both the cases it will take time before the act is done.
Generally speaking
people have welcomed the verdict. Statistics reveal that large number of
candidates have criminal records. Taking advantage of our judicial process
which is time consuming, criminals enjoy the benefit of law and contest polls
despite being charged with criminal offence. While there may be some genuine
cases where politicians have contested elections from jail but there are many
examples where hard core criminals too have contested and won the polls.
Veteran socialist leader
George Fernandes was in jail during the emergency. While other leaders were
released from jail, Fernandes was behind the bars when elections were declared
in 1977. He was facing criminal charges in the Baorda Dynamite Case under
various sections of the Indian Penal Code. But Ferandes contested from
Muzaffarpur Lok Sabha constituency in Bihar while in jail and won the
seat as Janata Party candidate with a huge margin.
This luxury of being
charged in crime and still contesting elections will end for people with
criminal background if the Supreme Court verdict prevails.
~R. K. Sinha
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