Wednesday, April 21, 2021

SC directive

The Supreme Court directive asking all the political parties to provide criminal records of cases involving them before and after every election in the country for the Election Commission to upload details in the public domain is a welcome initiative. As a conscious keeping of democracy, the SC must take care not to infringe upon other democratic institutions or appear well meaning but ineffective for this would reduce its stature. This is also true in a sense that despite passing strictures against some of the elected representatives for their involvement in serious criminal cases and recommending action against them, the NDA-government has not paid any heed to the directives rendering the SC as ineffective. This was perhaps one reason that some of the judges of the SC have expressed their unhappiness over the government’s attitude towards the directives. This is the reason that in trying to contain the growing presence in legislatures of members accused of serious crimes; it is in danger of over-stepping its limited and boundaries that it has respected. It is unfortunate and disgraceful that criminality in politics has existed and flourished for so many decades after independence. Going by the records presented to the Election Commission, one in four Members of the Parliament had criminal cases against them in 2004, but the frequency grew to about one in three between 2009 and 2014. Going further in 2019, the frequency has grown to one in every two MPs. If almost every other MP stands accused of a serious crime, something is very wrong with the choice of candidates by political parties. The SC does well to reiterate its concern about this development, but it could have drawn the line there, limiting itself to exerting moral force on political parties, which are clearly in error and continue to patronize persons with criminal records for giving the mandate to contest elections. The debate on this issue has definitely intensified over the few years particularly after the last General Elections as to why should the political parties choose to give mandate to such candidates who are facing serious charges of crimes. Somehow, the SC has gone ahead with the directions to make it mandatory for the political parties to publicize the number of serious cases against their candidates but also justify their choice over other hopefuls, who may be legally eligible. Moreover, the SC has also dictated that ‘win-ability’ of the candidate in the elections cannot be sole criterion for selection by the party. It would have been unexceptionable if these guidelines would have been framed for the political parties in the Indian context. At this stage, by making them enforceable under Article 142 of the Indian Constitution, which gives powers to the court to demand production of documents and making failure to do so as amounting to contempt of court is problematic thing and threatens to undermine the autonomy of the system of elections and elected legislatures. Candidates are already required to file their details in affidavits with the Election Commission. This order could infringe upon the role of the poll watchdog. Even more problematic is the requirement to justify the choice of candidates by the political parties. An election is an issue to be decided between parties, candidates and the voters. The courts should have no say in the matter, except in particular cases where the Representation of the People Act is violated. Besides this, the suitability of candidates is a subjective matter, and the justification required by the SC can only be an opinion, and not an objective fact, making the court’s order effectively unenforceable. It appears that the SC has ventured too far beyond its remit, and while its goal is obviously in the public interest, it could ponder the means further when there is debate in the public domain on this issue.