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kewal sethi
Posts: 33

has democracy triumphed

it has been a constant demand ofthe civil society and common citizen that, in order to free democracy fromgoing astray, the contesting of elections by the criminals should be banned. noone could quarrel with these sentiments though there were differences about howto define a criminal. is it the first conviction or the final one afterexhausting appeals and revisions and reviews? it was argued that notoriouslyslow indian justice would make a mockery of the provision if it were the finalconviction. another question was what happens if the verdict comes while he ismember parliament. then again what are the offences booking for which wouldrender the person ineligible for contesting elections.

despite several pleas for reformsof the electoral procedures, these points were not attended to even though thepolitical parties cried hoarse about the reforms and formed committees andcommissions to recommend ways and means to attain it. nothing was actuallydone. now the supreme court has come up with the pronouncement that ifconvicted and sentenced to more than two years imprisonment, the seat willbecome vacant forthwith. thus though the right of appeal to the higher courtsis not taken away but the right to appeal to voters is not to be allowed. anotherjudgment, which followed a day later, says that a person who is in prison or inpolice custody shall not be eligible to contest elections.

on the face of it, the civilsociety has scored a major victory. as soon as the person is convicted, heloses his seat. you cannot fight the election from jail. it is said that thesejudgments are blows to the criminalization of politics. the democratic rightsof the people have been vindicated. 

will these judgments change thegame? has democracy been strengthened by these judgments? it is unfair to theso called activists to question their ecstasy. but there are two points to beconsidered. what happens if the person concerned is successful in his appealand the conviction is set aside. in the government service, if a person isdismissed on false grounds and he is acquitted by the court, he gets his backwages and promotions as may be due. this does not fully compensate for his lossof opportunity to serve but at least has the satisfaction of getting what wasdue. how will this be done in the case of MP who loses his seat? how will he becompensated? will he be entitled to serve the term by which he was cut shortdue to earlier conviction. would he get the pension and other perks as per theterm he may have served but for the conviction. even if these are attended to, helost his opportunity to serve the people as member of parliament and thatcannot be brought back.

actually the indian law does notat all speak of retributory action on wrong convictions. no action is evertaken against the police officers or the judicial officers whose mistaken  judgment led to deprivation of liberty of aperson, howsoever flimsy the grounds of first conviction may be held to be.take the case of shibu soren. convicted by the sessions court, the high courtmaintaining the conviction, he got free chit in the supreme court. whose faultwas it that he lost his minister ship or, as if the present disposition were inforce would have lost his membership also. similar was the case of kalp nathrai.

second point – section 62 (5)says," no person shall vote at any election if he is confined in a prison,whether under a sentence of imprisonment or transportation or otherwise, or isin the lawful custody of the police:..". note that it says that he cannotvote. it does not say that he ceases to be a voter. there is difference inbeing a voter and being able to vote. it is clear that any voter can fight theelections. but under the ruling he is being prevented from this right also. anyway,this point will be tested in review or revision or by other means. the otherpoint is also likely to be questioned as an earlier judgment by a larger benchhad held section 8(4) to be legally valid.  

i am looking at the whole issuefrom another angle. what i feel is that this is a case of over activism. thesupreme court has taken upon itself the drive to reform the electionprocedures. please note that i am not arguing that these reforms are notnecessary. they are but are they worth giving the procedure a go by. in democracythe basic premises is that the people are supreme. by proxy, theirrepresentatives are supreme. they lay down the law. it is not for the courts tolay down the law. they are empowered merely to interpret it. going beyond thatis going beyond jurisdiction and that should not be allowed. it is negation ofdemocracy. section 8 (4) is quite clear in its language. anybody who isconvicted and is sentenced to more than two years will not be disqualifiedimmediately. he shall have the right to appeal and the operation of the ordersshall not be operative for three months in so far as rendering the seat vacant.if this time is not granted, it will be against the principles of naturaljustice. the damage he suffers by immediate disqualification cannot be undone.it is just as if the person sentenced to death will be hanged immediatelybefore waiting for outcome of appeal or mercy petition. when the language ofthe act and the intention of the parliament is clear, it can be interpretedonly in that way. to do it differently is to change the law and that is not desirable.tomorrow the court may come to an interpretation that only a member of loksabha can be prime minister or something of that nature like the pakistansupreme court decided to enquire into conduct of the president without consideringhis immunity and disqualified the prime minister when he refused to go againstthe constitutional provisions. something of that nature may take place in indiaalso.

it may please the civil societydemanding an end to criminalization but the danger of changing the law is thatthis trend will feed upon itself and newer measures will be coming forth whichwill undermine the spirit of democracy. already the entire bureaucracy isdemoralized because of the undue interference, first by the politicians and nowincreasingly by the courts. witness the recent tragedy in uttarakhand. everyoneis moved by it - the public, the bureaucrats, the politicians and thejudiciary. it is normal reaction. public has done its bit by setting up freekitchens for the sufferers, by donating handsomely for relief funds; the bureaucrats( amongst which, i include the army and air force personnel, ITBF personnel andothers) have rushed in to rescue people and to supply the stranded with rationsetc. the politicians have voiced their sympathy, and where possible, announcing,on behalf of their governments or their parties, financial assistance. everyoneis working to the best of his capacity. but one action does not interfere withthe action of the other though visits of politicians did interfere with thework done by rescue parties. this was criticized and the home minister had torequest politicians from stopping their visits. what does the judiciary do? itvoices its concern. that is good. but it then starts calling for reports. wouldthis not interfere with the operations. the attention is diverted from rescueand relief work to reporting. in munnabhai mbbs, question is asked that if apatient is dying, is it in order to deal with the emergency or to fill up theforms? a parallel can be seen here.  

maybe this was a diversion fromthe theme but the point is let everyone do his duty and not interfere withduties of others. election reforms are necessary but let these be done by thepeople and not courts. we have the stories of benevolent dictators who restoredlaw and order, got rid of the corrupt, and generally helped the country togrow. but for this reason, we do not shelve democracy in favour ofdictatorship. the ends may be important but the means are also important. if wehand over the governance to judiciary, it may be good in the short run but itis not the solution. it will be remembered that emergency imposed in 1975 wascalled anushasan parva by vinoba bhave. there were visible signs of efficiencyall around, but the good times did not last. there were excesses in the name ofefficiency. ultimately, it was evident that things did not improve because ofemergency. something more is required, a change of heart, a resolve to improve,a determination to implement. if this is missing, the results may not fulfillthe expectations. if the mp is barred from standing, the place will be taken upby his wife, his son, his daughter or, maybe, his servant, it would not begenuine democracy. the concerned person still remains in charge. we areconversant with the phenomenon of 'sarpanch pati'. the format changes, the substanceremains the same.

democracy should not be theconcern merely of the courts or the politicians, it should be the concern ofthe people. and it is not easy to make it real. a contant struggle isnecessary. how this can be achieved may be the theme of  another essay. but over activism on the partof judiciary is not the solution, not even a temporary one. it is not thetriumph of democracy, it is eclipse of democracy by other forces.




July 17, 2013 at 1:18 AM Flag Quote & Reply

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