Friday, March 5, 2021

Tainted leaders

Judicial activism in the wake of Supreme Court’s recent directive to the central government to formulate a scheme to establish special court for exclusively trying cases against politicians is an achievement in higher judiciary’s campaign to cleanse politics of the taint of crime. In fact, judicial activism has come into play due to central government’s laxity in completing the trial of politicians for the criminal cases pending against them for years together. Unfortunately, the inordinate delay caused in trial of politicians has given an impression that those in politics can get away with anything, howsoever, heinous case may be against them. Unfortunately, many cases pending against them have not been completed even during the term of the candidates enjoying the terms as Members of Parliament, Members of Legislative Assemblies and holding other public offices. The court has handed down many rulings that make legislators and holders of public office accountable for corruption and other criminal cases. In recent years, the court has grappled with the disturbing phenomenon of criminals entering the electoral fray. In many cases, some of the politicians have contested elections while they were behind bars and continued to enjoy the benefits of holding the public office. In a landmark verdict in 2013, the court removed the statutory protection for convicted legislators from immediate disqualification; and in 2014, it directed completion of trials involving elected representatives within a year. The Supreme Court is now keen on establishing a time-bound and exclusive judicial mechanism to expedite trials involving ‘political persons’. The recent order requires the central government to provide details of the funding necessary to set up special courts, and indicates that state governments be involved in the exercise. The idea of involving the states in this scheme of things was to complete trial of the legislators in their jurisdiction only in a time-bound manner. It is true that cases involving offences by serving or past legislators move rather gingerly in the present criminal justice system. It is also clear that the present system cannot suffice to meet the ends of justice. It is apparent that those with political influence have taken full advantage of its inherently flawed nature by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions to stall any meaningful progress against them. Only some prominent political leaders have been successfully tried and sentenced, but these are exceptions rather than the rule. For the influential politicians a criminal prosecution is no more than a flea bite; and, sometimes, even a badge of victimhood that rebounds to their electoral benefit. Sadly, they have been in a position to draw political benefits out of such cases. Even before the order was made by the Supreme Court, there has been a feeling that establishment of special courts may not be the ideal way to expedite cases against the political beings. From the viewpoint of the accused, the idea could given an impression of victimisation and engender a feeling of being chosen for discriminatory treatment. Under the existing procedure, there is already a provision for special courts to try various classes of offences ranging from corruption to criminal in nature. For instance, corruption, terrorism, sexual offences against children and drug trafficking are dealt with by special courts. However, creating a court for a different class of people such as politicians can amount to discrimination. The corruption charges against public servants are being handled by special courts, it is a moot question whether there can be special treatment for offences under the Indian Penal Code solely because the accused is a politician. A possible legal and moral justification is, of course, available under current provisions. It is in the public interest to expedite cases in which those in public life face serious charges. It would be primarily in their own interest to clear their names quickly, lest their candidature be tainted. Also, the earlier order for completion of trial within one year appears to have had no significant impact because it may not be practically possible to do so. The special courts may indeed address these issues, but the ideal remedy will always be a speedy trial in regular courts.