Where Parliament fails, judiciary saves

The Supreme Court’s ruling that legislators must cease to be members of the House if they are convicted by a court for an offence where the punishment is more than two years, and its more recent judgment with regard to the Right to Reject has raised, in some circles, the issue of judicial overreach. Are we seeing a new pro-activism on the part of the highest judicial bench in the land on the question of electoral reforms If so, is this a positive development or a negative one My view is that given the reluctance of the political establishment to act, judicial activism in this sphere is a good thing primarily because it forces our politicians to respond and, hopefully, act. No one can say that our Parliament and political parties have not had enough time to act. In our country, deliberate political drift has become one of the greatest impediments towards achieving democratic reforms. The record bears this out. The Goswami Committee on Electoral Reforms was set up 23 years ago in 1990. Subsequently, there have been a host of other committees and reports, including the Vohra Committee (1993), Indrajit Gupta Committee on State Funding of Elections (1998), Law Commission Report on the Reform of Electoral Laws (1999), National Commission to Review the Working of the Constitution (2000), Election Commission of India Report on Proposed Electoral Reforms (2004) and the Second Administrative Reforms Commission (2008). None of these have been able to bring about comprehensive change and have remained confined to proposals, ideas and intentions. This is largely because most political parties and politicians have no overriding motivation to change the current system because they are its biggest beneficiaries. Hence the delay, or at best an incremental approach to change. For instance, in 2005, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice was asked by the chairperson of the Rajya Sabha to examine 22 proposals on electoral reform drafted by the Election Commission. The Standing Committee gave its recommendations on only six minor proposals and favoured no further action on such a fundamental matter as the increasing criminalisation of politics. It is no coincidence that the comprehensive Electoral Reforms Bill has been pending before Parliament for the last two decades. If Parliament, the supreme institution in a democracy, refuses to act substantially on matters relating to the ethics and rectitude of its own functioning, what recourse do public-spirited citizens have Their only recourse is to approach the judiciary, and the judiciary has taken the decision to interpret the law and push the system towards reform. The judiciary has had to step in because our Parliament, which should have been the first to act, refuses to do so. The reasons for Parliament to have acted are stark and self-evident. For some time now the nation has been witness to the widespread criminalisation of our polity. This became abundantly clear in 2004 when the Election Commission made it compulsory for all candidates to the Lok Sabha to disclose their criminal antecedents. What this revealed was that 128 members of the Lok Sabha, or roughly a quarter of parliamentarians, had criminal backgrounds. The revelation of these statistics created national consternation, but Parliament did nothing about it. In the next elections in 2009, the number of MPs with criminal histories went up by 20 per cent, with nearly half of them facing serious charges of rape, abduction, dacoity or murder. Today, almost one-third of the members of the Lok Sabha — the supreme legislative body supposed to make laws for the good of the nation — have criminal records. What is even more scandalous is that some of these tainted people are actually selected to occupy powerful positions in government. Mohammad Shahabuddin, a four-time MP from Siwan in Bihar, was debarred by the Election Commission from the 2009 elections after being convicted of murder. But, frighteningly enough, he was earlier, in the Deve Gowda regime, Union minister for home, in charge of the police! The police had several non-bailable arrest warrants out for him, for offences ranging from murder to kidnapping to smuggling and the possession of vast amount of illegal weapons, but he roamed free until Nitish Kumar in 2005 took the courageous step of arresting him in his MP bungalow in Delhi. Lalu Prasad Yadav, an accused in the fodder scam, could still qualify to become the railway minister, merely by taking advantage of the tardy judicial process. The country is fed up with the distortions in the functioning of our democracy. People want clean politics. They want electoral reform, including in areas of financial transparency and the pernicious link of politics to black money. The initiative taken by the Supreme Court has, therefore, considerable public support. Of course, even in its recent rulings, there is scope for some fine-tuning. For instance, on the issue of the Right to Reject, which is an otherwise well-intentioned reform, there are many issues which need clarification. Similarly, as a follow-up to the ruling on disqualifying convicted candidates, the Supreme Court must take up concrete steps to put its own house in order to tighten the interminable judicial process in successive appeals, and expand the network of fast-track courts to ensure prompt justice. It is a sad commentary on our political class that they have finally been goaded to take a position on some aspects of electoral reform only on the intervention of the judiciary. Rahul Gandhi’s dramatic press conference on the ordinance proposed by the government to circumvent the Supreme Court’s ruling would, perhaps, have been less dramatic and more meaningful had he expressed to his party and government his strong reservations earlier. But it is, nevertheless, the right stance, and an indication that political parties are at last beginning to feel the pressure to align a little more in accordance with public opinion.

Author-diplomat Pavan K. Varma’s latest book is Chanakya’s New Manifesto: To Resolve the Crisis Within India