While I ponder upon this topic, I believe that the first thing that comes to my mind is that; yes everyone deserves a second chance. But, when I think about it in the larger context and the perils it withholds within itself, I get confused whether the politicians really deserve this chance because an adult person has already formed his mentality and a change in that is next to impossible. These persons are in charge of shaping the nation’s future and they are the idols of a lot of people which makes the people more susceptible to fall prey to their practices and get influenced by their acts easily. Out of the 539 winners analyzed in Lok Sabha 2019, 233 MPs have declared criminal cases against themselves. This is an increase of 44 percent in the number of MPs with declared criminal cases since 2009.
This is already a frightening depiction of the trend that is engulfing our country’s fortunes and can easily spread corruption and crime everywhere. Let’s look at what are answers can be to the prevailing conditions.
SCENARIO IN INDIA
On course to ensure speedy trials in 4,442 criminal cases pending against former and sitting MPs and MLAs across states, the Supreme Court, in September, had asked the Centre to respond to a new prayer in a pending PIL seeking a life ban on politicians convicted of heinous offense from contest elections.
Senior advocate Vikas Singh, appearing for advocate-cum-petitioner Ashwini Upadhyay, said that there was a long list of serious crimes where if a public servant is held guilty, it will lead to his disqualification from any further holding any govt. job in his lifetime. “Why can’t the same yardstick be applied to politicians who, under the Representation of People Act, get away lightly by getting debarred from contesting elections for a period of six years after serving the jail term?” he asked.
In another case, The bench noticed a strange situation. There was a murder in the year 1983 of a doctor from Tarn Taran, Punjab, in which a former Akali Dal MLAVirsa Sigh Valtoha was being held the accused. The peculiar thing is that the case had not come up for hearing till now even after 36 years but the Trial court finally in 2019, framed charges against the accused and started the legal proceedings. Although, all this surely means that the case is still a long way from passing any decision.
The amicus in the case said, “One of the causes for the delay for the start of the trial proceedings was that the defendant exercised money and muscle power to intimidate witnesses who were aggressive”, and demanded that the court order the authorities to enforce witness protection measures strictly. In addition, there are several occasions where non-bailable arrest warrants issued by trial courts to ensure the presence of the suspected lawmakers are not enforced.
Partially because of his commitment to clean governance, Modi won a decisive victory in May after the people lost their belief in the previous government led by Congress, which was alleged to have been involved in series of corruption scandals and other accusations. But after the election results were out,13of his 45 ministers possessed criminal offense charges against them. Of the group of 13, 8 had very severe charges against them.
India is one of those countries where nothing is greater than the rule of law. But then the weakness of the rule of law presents a dual advantage to these politicians. The first advantage is that they can easily get away with indulging in illegal activities without even a serious chance they are going to get caught for the same and face actual consequences for their acts. The second implication is that once they are in the office, they can do anything and pass any direction and all this allows them to bend the odds in their favor. So, they can manipulate rules in a bid to distribute goods and services to people who will support them. This leads to putting pressure on the system and helps the politicians in their demeanors.
One clear setback that we can think of in this situation is that this prompts the politicians to never possess an incentive to strengthen the justice system because the situation gives them an advantage & respects their interests of keeping the system weak. Having a weak system makes these cases just drag on and on without even disturbing the sleep of these wicked politicians. Also, without even doubt, the implications of a weak criminal system are not just for these petty politicians, but they affect all aspects of life.
The voters, often equipped with full knowledge, quite astonishing support those candidates who have had a pastor possibly even a present criminal character. This is so when they have such a criminal bona fide and the support is because of the same. In countries like India where the rule of law can be said to be weak, the government is not seen as one which can impart complete justice, provide effective resolutions, be an impartial mediator, or seen as one which can deliver basic necessities such as law, order and other services. People generally desire somebody who can fill the vacuum which cannot be done so by the government.
A TALE OF TWO CRIMINALS
South African leader Nelson Mandela was incarcerated for 5 years in 1962 for incitement and fleeing the nation without a permit. A life imprisonment penalty for sabotage (an act equivalent to treason) was introduced in 1964. He was released from prison in 1990, following decades of political discussions, and was elected as president of South Africa in 1994.
James Traficant, a 9-time Ohio Congressman, was held guilty in the allegations of bribery and other similar charges in April 2002. The US Congress used its rarely invoked power to monitor its own membership in mid-July 2002 and expelled Traficant from the House. He was sent to 8 years in jail but even prison could not act as a barrier between his desires to pursue political office. Traficant stood up in elections from his prison cell and has won every time after that as a candidate of the democratic party.
The examples of Mr. Mandela and Mr. Traficant explain to us how first-hand criminal conduct is seen as something which renders a person incapable to hold the post of a public representative. This is what is widely understood. But then we figure out that what the people view and regard as suitable can change quite quickly or rather dramatically.
THE FLIP SIDE
Aristotle has defined citizenship in terms of participation, including the holding of public office. As a society’s constitution and laws set out its basic rules, that legal framework should include provisions that reflect this understanding of citizenship. Provisions that prohibit offenders from standing-and even voting in certain jurisdictions-exist for this purpose.
This reasoning rests on two factors: that illegal activity is incompatible with citizenship and that if one wishes to be a holder of some public office, then one has to necessarily be a good citizen.
The bench referred to the constitutional provision relating to the oath of a minister and asked whether a person facing a murder charge “can still take the oath that he/she will uphold the Constitution of India”. “There was nothing in the oath which can establish that a person facing criminal charges will not uphold the Constitution and moreover there are provisions of right to a fair trial in the Constitution and a person is presumed to be innocent till proven guilty,” Venugopal said.
So, we can say that these politicians do have a constitutional backing and have almost a fundamental right to act as they do. But, if the parliament doesn’t take an action soon, the court must consider its fundamental duty of protecting the rights of the larger sections of the society as we know that reasonable restrictions can be applied in the interest of the larger public.
While I complete this article, the SC has said that they will not pass any such order to altogether stop these wicked politicians to compete, but have advised the parliament and underlined that it is high time they take some action on the issue. So, it is still up for argument and for people to make up their minds because this problem surely would not be discussed as easily or in-depth in the parliament when more than 50% of politicians already possess criminal cases against them, and if they do this, they would be arguing for something which will go against them only in a general sense.
In its ruling on Wednesday, the supreme court said it could not disqualify the ministers, as the constitution allows prime ministers to appoint their own cabinets, but said it hoped the premier would.”Will any reasonably prudent master leave the keys of his chest with a servant whose integrity is doubted?” the panel of five judges asked, adding, “corruption is an enemy of the nation. As a trustee of the constitution, the PM is expected not to appoint unwarranted persons as ministers.”
Hence, we can only pray for the best solution in this scenario as the parliamentarians are clearly in the driver’s seat here.
Author(s) Name: Arnav Mathur (Dr. Ram Manohar Lohiya National Law University, Lucknow)