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legislation which is ultra virus of the Constitution can be repealed or held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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