Two rulings in as many days, and the Supreme Court has set the tone on checking criminality in politics. Yet, issues remain in implementation/enforcement, if the court verdict has to produce the desired results and meet with discerning goals. Details have to be gone into, if the political class in particular (including intended politicos) were not to cry foul, or create imaginative situations (which they anyway are often faced with than the Judiciary, which often deal with facts and law, post facto) and rule on them. None but the higher judiciary is better placed and equipped to address these issues than either the Executive or the Legislature, as democratic politics exists in this country today.
As coincidence would have it, both verdicts have come from a division bench of the Supreme Court, comprising Justices A K Patnaik and S J Mukhopadhayay. The first one took away from convicted legislators the three-month time available to the common citizenry for appealing against their conviction. The brief respite for a section of the elected representatives, if it could be called so, is that the verdict does not have retrospective effect. This means that convicted lawmakers who had appealed against the lower court verdict already would not be disqualified.
The second court verdict pertains to those in custody. The Bench has ruled that those in lawful custody too cannot contest elections until their names are cleared by courts. The court has based its ruling on the fact that voters in prison cannot cast their vote, and hence an elector wanting to contest the elections, citing his basic requirement as a voter in the nomination forms too cannot contest the elections. The exception in this case relates to those who have been taken under 'preventive custody'. Going by media reports, the Bench has not clarified if preventive detention under the NSA and legislation of the kind at the State-level, without prior conviction, would amount to 'preventive custody' or 'lawful custody' attracting disqualification.
The Supreme Court verdicts have sought to erase for good the mistaken belief in some of our politicians that once elected law-maker, they can always remain one, even while their criminality had been established before a court of law and they had been sentenced adequately enough to attract 'disqualification' under the RP Act. In doing so, the Apex Court has also sought to do away with the distinction between 'disqualified' persons contesting elections and those already elected to a Legislature 'continuing' in office pending appeal and the final disposal of the latter at the highest levels of the Judiciary.
At the time of drawing the distinction, Parliament in its wisdom had provided for those elected legislators who had challenged their conviction, and consequent 'disqualification', being exonerated by the courts of appeal. If 'disqualification' had taken effect, and an elected legislative seat had fallen 'vacant', it's incumbent upon the Election Commission (EC) to conduct fresh elections before the conclusion of six months of such vacancy. In the light of the prevailing politico-criminal environment and more specifically, after the instant Supreme Court judgment, the possibilities of many, if not most, incumbent legislators losing their seats is not an unimaginable reality.
Media reports of the court verdict, and television talk-shows thus far have not mentioned any cure to the possibility emanating from the Apex Court verdict. If no cure has been prescribed, the court may have to revisit the verdict and make appropriate amends, and give adequate directions, to make its intentions more binding and enforceable. If the court feels that this aspect of the matter requires further elucidation, it can call for comments from the Election Commission and also various registered political parties, and also the Attorney-General and/or the Secretaries-Generals of the two Houses of Parliament and their counterparts in the States.
Limited application
The court verdicts have only a limited application in reality. Conversely, it could also set the tone and trend for multiplicity of motivated litigations and imprisonments, undertaken at the behest of the party in power. It is a reality that the courts cannot wish away under the existing circumstances. Nor should the higher judiciary overlook the possibilities at the implementation/enforcement levels, where the historic verdict would be cited offhand and out-of-turn, to serve the political ends of the party in power.
In a vast and varied country like India, for the Apex Court to keep monitoring the conduct at lower levels of subordinate judiciary, which orders 'remands' and 'bails' in most cases, in remote corners would be an impossibility, particularly on the last day for the filing of nominations. In such a case, the court should also clarify the position from the Election Commission's stand-point. In an earlier case, the Supreme Court has upheld the 'disciplinary authority' of the Election Commission on all staff on poll duty, but clearly the current court verdict does not include members of the subordinate judiciary in the list.
If 'lawful custody' of a nominee, between the day he or she filed the nomination and the day the Returning Officer verifies the same would lead to such 'disqualification' is a point. If in context, a particular Government, either at the Centre or in the State, were to initiate criminal action of the kind, leading to 'lawful custody' in a single case (a la 'Aydohya demolition) or a defamation suit (where many leaders from an Opposition party might have been similarly present), the Supreme Court order does not provide a satisfactory answer, it would seem.
It can be argued before a Constitution Bench of the Supreme Court that the current verdicts go against the basic tenets of criminal jurisprudence - namely, 'innocent until proved guilty' and that criminal appeals are a part and parcel of the Constitution-driven criminal jurisprudential scheme in the country. Combined, it could be argued that until all the appeals had been exhausted, the law has to presume that the accused before the court may have to be deemed 'innocent'.
Likewise in the context of the second verdict, an intended nominee in 'lawful custody' could obtain bail from the court or on appeal on a later date. He would have then been penalised not by the act of his perceived criminality leading to 'lawful custody', but by the 'accident' of the election notification, or his initiation detention under the law. Taken exponentially, in the larger national context, the very purpose of the current verdicts could be defeated at the grassroots-level, if the authorities at all levels were not to appreciate and act according to the spirit of the Apex Court's intent and purpose - and not stop with exploiting the letter of the same.
Arguments of the kind could defeat the spirit and purpose of the current ruling. Considering that the Attorney-General had cited an earlier Constitution Bench verdict in 2005 upholding Section 8(4) of the RP Act (granting three-month appeal-time immunity for incumbent legislators) before the Division Bench in the first case, it is not unlikely that the Union of India may be constrained to move an appeal for greater clarity, particularly for implementation purposes by the Election Commission. As may be recalled, the 2005 verdict upheld the legislative 'classification of Parliament' (or, State Assemblies) under Section 8(4) of the Representation of the People (RP) Act.
On the procedural front, what will be the effect of a court-ordered conviction leading to immediate disqualification on a candidate or election after the Election Commission had notified the polls and possibly the convict had also filed his papers? The Supreme Court order seems to be silent on such a possibility - but this is a widespread reality in the Indian context, and for a variety of reasons, not all of them genuine, transparent and non-partisan of one kind or the other. Will the existing rules that courts cannot interfere with the 'election process' once the polls had been notified gain over the current court direction? If so, what is the remedy? If not, what are the possibilities and the consequent remedies, if only to uphold the spirit of the current court verdict?
The verdicts also leave a few other gaps that in practice could defeat the very purpose for which they have been pronounced. There is no provision or protection under the court-ordained scheme about the possibility of political misuse of the court verdict by any resourceful State Government to ensure that their political adversaries are 'temporarily disqualified' thus, pending their appeals and final disposal. Given the state of the lower judiciary in particular in many parts of the country, the Supreme Court has to apply similar yardstick that it applies to the political and bureaucratic classes to individual members of the subordinate judiciary, as well, either up to a point or after a point.
Discouraging honest citizens...
From the stand-point of the ' honest citizen' desirous of serving the nation through elected office (or, that will be the line that would be argued), judicial delays that could lead up to avoidable and/or extended 'disqualification' where the final verdict clears the accused of all wrong-doing making up for such 'disqualification', the current court rulings seem silent. At a time there is increasing public awareness and urge to clean up the electoral mess caused by criminals in politics, 'sweeping' court orders of the kind could discourage non-politicians wanting to serve the nation to clean up the precise mess, may be discouraged from entering the arena. Conversely, there are also issues of popular mandates that go against the spirit of court verdicts.
In the famous 'Jayalalithaa case' in Tamil Nadu, Returning Officers rejected her nominations simultaneously in four Assembly constituencies across the State in the 2001 elections, citing a pending criminal conviction with a prison sentence going beyond two years (when alone 'disqualification' applied). Yet, then Governor, Fatima Beevi, hurriedly swore in Jayalalithaa as Chief Minister, without seeking either independent legal opinion or that of the Centre, or the President, as used to be the practice in such controversial circumstances. Prior to being appointed Governor, Fatima Beevi had retired as the first woman Judge of the Supreme Court of India - and was expected to have known the law of the land, and the spirit of the Constitution, more than most citizens in her place.
Yet when moved, the Supreme Court cited Jayalalithaa's pending 'conviction' in the 'TANSI land-deal case', directing her to step down from office. The court observed that the intervening stay of the trial court order related only to the sentencing part, not the conviction, thereof. Months later, the Apex Court cleared Jayalalithaa of all wrong-doing. She contested for an Assembly seat for a fifth time in almost as many months, and was sworn in Chief Minister for the second time in those many months.
In the 'Jayalalithaa case', the Apex Court also held that any subsequent stay of the trial court order on appeal applied only to the 'sentencing' part - and that a 'convict' could come out on bail. However, the 'conviction' would remain until final disposal at the appeals level, where however there are layers and layers. The court verdict now on 'convicted politicians' may only a reiteration of the Apex Court verdict in the 'Jayalalithaa case'. The media-hype thus attending on it now may not be wholly misplaced, however - and has under-scored what was already there on the book, but forgotten by both the politicos and the rest, alike.
Avoidable uncertainty
It is not only about the costs involved to the exchequer, but more about the principles involved. It is another matter that the Supreme Court Bench hearing the main 'TANSI land-deal case' dating back to her first term in office (1991-96) close to a year to pronounce the verdict after all arguments had closed. This caused avoidable uncertainty and political speculation throughout the run-up to the 2001 Assembly polls in the State, and also caused eyebrows to be raised, too.
An unanticipated court verdict of the kind, if the present Supreme Court ruling has to hold, could impact of the legislative majorities of incumbent governments, particularly if a series of trial court verdicts were to be pronounced almost at one go, or in the theoretical circumstance of a one or two-vote majority for any government in the legislature concerned. In desiring the enforcement of the current verdict, the Supreme Court may also have to revisit its 1977 advisory - reiterated in 1980 -- in the 'Nine Assembly dissolution case', where primacy was given to popular mandate and political expediency compared to legal norms and constitutional precedents, if any.
The Jayalalihtaa-led coalition's massive election victory in 2001 despite her ab initio disqualification as the leader of the coalition had pointed the need for such a review, if not re-definition from the judicial stand-point. Going beyond court orders and disqualifications, Indira Gandhi's return to power in 1980 with a massive parliamentary majority despite Parliament having disqualified her earlier also has lessons. Extending the current observations of the Apex Court, which purportedly reflects the public consternation in the matter, national leaders like George Fernandes would not have been able to contest the historic post-emergency polls of 1977, and become Minister, too. In the hypothetical situation of the post-emergency Government not having freed other national leaders ahead of the polls, most of them would have been debarred from contesting, too. Hailing from Karnataka and having identified himself with the working class in Mumbai before jumping on to the national rail union bandwagon, Fernandes won by 300,000-vote margin from Muzzfarpur in distant Bihar - and from inside Delhi's Tihar Jail. Incidentally, he and his co-accused were never-ever charge-sheeted in the 'Baroda dynamite case'.
Usual course, attendant time
Now, in the 'disproportionate assets case', incidentally against Tamil Nadu Chief Minister Jayalalithaa and dating back to her 1991-96 tenure, the Bengaluru trial court in neighbouring Karnataka is yet to pronounce the verdict. Judges have changed, so have the Public Prosecutors, chosen by the Judiciary at the instance of the Supreme Court, but the trial has continued in fits and starts over the past decade or so. It is another matter that despite the Supreme Court having transferred the case from a Chennai court to Bengaluru after Jayalalithaa returned to power in 2001, and ordered fast-tracking of the same, the case has taken its usual course of interlocutory petitions and appeals -- and attendant time. No Judge at any level seemed to have referred in the process, to the pending direction of the Supreme Court itself for speedy trial in the matter.
It is at present the right of every accused to seek justice and clarification at every stage of his choosing, and interlocutory petitions are a tool thereof. The Executive and the Legislature are unlikely to address these concerns, but the higher Judiciary cannot remain aloof. Better still, the Supreme Court may have to revisit a plethora of pending cases and pronounced litigation, and come up with a comprehensive set of rules that need not have to be revisited on a case-by-case basis, at least over the short and medium terms.
It is however not inconceivable that the prosecution too could do so in other cases of the kind, where the electoral consequences for the accused could be interim or permanent disqualification from contesting elections (until six years after they had completed their jail sentence). The Judiciary should not also be silent on, or blind to the realities on the ground that court verdicts of the nature could have on the body-politic and the public at large, both in terms of the final findings (which are purely legal and constitutional) and the timing (which while not being manipulated, could still have consequences).
Time-lines for trials?
Considering the purpose of the current verdicts and the positive hope that it has kindled in the civil society and the larger citizenry it may be time that the Supreme Court, in its wisdom, considered the necessity for setting specific/permanent time-lines for the subordinate and appellate judiciary for disposing of corruption cases, disqualification petitions and also election petitions. In a few recorded cases, the Supreme Court verdict on appeals flowing from election petition had been pronounced after the Election Commission had notified the next round of General Elections or State Assembly polls. Incidentally, High Courts have 'original jurisdiction' for hearing 'election petitions' and the Supreme Court alone has the single-stage appellate jurisdiction in the matter.
In this context, the Apex Court could also consider the wisdom of directing the Government at the Centre (regarding CBI cases) and in the States, to set up special courts to hear corruption cases against politicians, seeking speedy trial in writing - with the proviso that all corruption cases would have a one-stage appeal in the Supreme Court, and no interlocutory petitions would be allowed in the matter. The highest judiciary in the land could also simultaneously consider the wisdom of such special courts to be manned by Judges of the High Court, where special provisions could be made for 'trial procedures' in the High Court, which is now left exclusively to the subordinate judiciary in the post-Independence era.
(The writer is a Senior Fellow at Observer Research Foundation)
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