Politics and criminality

The Supreme Court’s reminder that the executive needs to observe “constitutional propriety” while appointing people to ministerial posts, and essentially suggesting that the elected head of government should refrain from considering people who have had charges framed against them in “serious” criminal cases for high office, is unexceptionable. In fact, the Constitution bench was careful to delineate the border between executive and judicial power, observing that it could not, through judicial interpretation, insert any additional disqualifications into Article 75 of the Constitution. Nevertheless, with its reminder to the executive that the Constitution not only endowed the Prime Minister with great power, but also reposed great trust that such power will not be abused, it has effectively thrown the ball back in the political court to decide what can, or cannot, be considered a disqualification for holding public office.

The letter of the law is quite clear on this. As things stand, a person convicted in a criminal or other case entailing a prison sentence of more than two years is disqualified from being a Member of Parliament or member of any legislative assembly. Such persons are disqualified from holding ministerial positions, as laid down in 2001 by the Supreme Court in the Jayalalithaa case. By stressing that “constitutional morality, good governance and constitutional trust” enjoined the Prime Minister (and State chief ministers) to refrain from picking people who have had “serious charges” framed against them by a trial court, the Court has raised the bar on probity in public life, and echoed the public dissatisfaction with the criminalisation of our politics. In fact, research shows that nearly a third of the members of the Union Council of Ministers had declared in their election affidavits that they had criminal cases pending against them, and that more than one-fifth of the members of the current Lok Sabha also had similar charges pending against them.

However, this has to be read with some qualification. Our criminal law is a relic of the colonial era, with sections specifically created as tools to quell political protest. Post-Independence, governments of every stripe have built up a track record of misusing such provisions, as well as investigative agencies, to foment cases against political opponents. And given the lengthy delays involved in our trial process, the trial itself becomes the punishment — especially if disqualification, as per the Supreme Court’s advice, is added. ‘Innocent until proven guilty’ is the cornerstone of a sound and fair legal system — even if it has been used as a defence by the criminal and the corrupt. We need, as Prime Minister Narendra Modi has advocated, a fast-track mechanism to decide cases of a political nature. In the absence of this, the debate about disqualifying chargesheeted MPs and MLAs is likely to go nowhere.

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