Over the years the apex court has spearheaded measures to ensure that voters have adequate information on election candidates. The recent judgment of the Supreme Court on the criminalisation of politics has taken voters a few steps towards making an informed choice in exercising their franchise, but the hopes of debarring those facing criminal cases from contesting elections seem a bit too distant.

This is because of the apex court’s view that while entry of criminals into legislative bodies is like a “termite to the citadel of democracy,” it cannot make the law to keep them out. That, the court said, is the domain of Parliament, an institution that is yet to show a firmness of resolve to stem the rot.

Over the years the apex court has spearheaded measures to ensure that voters have adequate information on election candidates. The court’s directives have ensured that candidates have to file affidavits containing their educational qualification, assets and liabilities and criminal record.

In the latest judgment, the court has gone further and said political parties that give tickets to persons with criminal cases pending against them must publicise the information on the party websites. In addition, the candidate and the political party must issue a declaration in “widely circulated” newspapers about the candidates’ criminal records and must give “wide publicity” to this at least thrice on the electronic media after the nomination is filed.The court expressed “immense anguish” at the rising number of individuals with criminal records entering legislative bodies in the country, but refrained from debarring such individuals from contesting elections.

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It said the time has come for Parliament to “make law to ensure that persons facing serious criminal cases do not enter into the political stream.” The court recalled the opinion of the Law Commission that persons against whom serious criminal charges have been framed in a court be barred from contesting elections. The Commission’s recommendation “vividly exhibits the concern of the society”, the
court said.

The court also wanted Parliament to make it mandatory for political parties to revoke the membership of persons charged with “heinous and grievous offences” and not give them tickets to contest elections. It said this will go a long way in decriminalising politics.This judgment reminds us of the Supreme Court’s verdict in the infamous JMM case, which was about the bribing of MPs to ensure the defeat of a no-confidence motion brought against the P V Narasimha Rao government in 1993.

Rao headed a minority government and the numbers in the Lok Sabha were precariously stacked against him. He was accused of buying the support of ten MPs to survive the vote in the Lok Sabha. Four of these MPs belonged to the Jharkhand Mukti Morcha (JMM) and they were paid `2.8 crore in total in lieu of their support. This cash-for-vote deal helped Rao defeat the no-confidence motion on 28 July 1993 by 265 votes to 251.

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What happened before and after the vote in the House was nothing short of a scandal. A prominent party leader from Karnataka flew to New Delhi with the bribe money in a huge suitcase. The suitcase burst open on the conveyor belt in the Delhi airport and fellow passengers were aghast to see bundles of currency notes strewn all over the place.

Even more hilarious was what happened after the vote in the House—the JMM MPs took the bribe money in gunny sacks to a branch of a nationalized bank in Delhi and asked the manager to deposit it in their accounts! But none of these MPs was punished for accepting a bribe to vote in a certain way in the Lok Sabha and deposit the bribe money openly in a bank.

These corrupt MPs went scot free because the Supreme Court held that Article 105 of the Constitution shielded them from prosecution. Article 105(1) says MPs shall enjoy freedom of speech in Parliament. Article 105(2) says no MP “shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament”.

In this case, the MPs who took bribes were prosecuted under the Prevention of Corruption Act. But the MPs argued that they cannot be prosecuted for what they said or did in Parliament. The court found merit in this argument. It said the alleged bribe-takers who had voted in the House were “entitled to the immunity conferred by Article 105(2)”. However, the court said the bribe-givers should be prosecuted, as also the bribe takers who did not vote. It said only those who voted were protected by Article 105(2).

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While the Supreme Court’s constitutional correctness is understandable, the consequence of all this—especially the precipitous fall in the quality of men and women entering our legislatures—is plainly evident.We need not be surprised if many legislators see this as licence for gross misconduct, and assume they are outside the moral and ethical framework within which the law and the courts expect public servants to live.

It would be futile to expect Parliament, which has been, at best, just a spectator to the criminalisation of politics, to now suddenly pay heed to the apex court’s recent judgment.

The decision to give party tickets is based on the ability of the candidate to win, and the number of legislators with criminal records has been on the rise over the years. Will Parliament share the apex court’s concern and anxiety and bring in a law to keep criminals out? India’s apex legislature must prove the sceptics wrong! #KhabarLive