• kewal sethi

has democracy triumphed


has democracy triumphed


it has been a constant demand of the civil society and common citizen that, in order to free democracy from going astray, the contesting of elections by the criminals should be banned. no one could quarrel with these sentiments though there were differences about how to define a criminal. is it the first conviction or the final one after exhausting appeals and revisions and reviews? it was argued that notoriously slow indian justice would make a mockery of the provision if it were the final conviction. another question was what happens if the verdict comes while he is member parliament. then again what are the offences booking for which would render the person ineligible for contesting elections.


despite several pleas for reforms of the electoral procedures, these points were not attended to even though the political parties cried hoarse about the reforms and formed committees and commissions to recommend ways and means to attain it. nothing was actually done. now the supreme court has come up with the pronouncement that if convicted and sentenced to more than two years imprisonment, the seat will become vacant forthwith. thus though the right of appeal to the higher courts is not taken away but the right to appeal to voters is not to be allowed. another judgment, which followed a day later, says that a person who is in prison or in police custody shall not be eligible to contest elections.


on the face of it, the civil society has scored a major victory. as soon as the person is convicted, he loses his seat. you cannot fight the election from jail. it is said that these judgments are blows to the criminalization of politics. the democratic rights of the people have been vindicated.


will these judgments change the game? has democracy been strengthened by these judgments? it is unfair to the so called activists to question their ecstasy. but there are two points to be considered. what happens if the person concerned is successful in his appeal and the conviction is set aside. in the government service, if a person is dismissed on false grounds and he is acquitted by the court, he gets his back wages and promotions as may be due. this does not fully compensate for his loss of opportunity to serve but at least has the satisfaction of getting what was due. how will this be done in the case of MP who loses his seat? how will he be compensated? will he be entitled to serve the term by which he was cut short due to earlier conviction. would he get the pension and other perks as per the term he may have served but for the conviction. even if these are attended to, he lost his opportunity to serve the people as member of parliament and that cannot be brought back.


actually the indian law does not at all speak of retributory action on wrong convictions. no action is ever taken against the police officers or the judicial officers whose mistaken judgment led to deprivation of liberty of a person, 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 court maintaining the conviction, he got free chit in the supreme court. whose fault was it that he lost his minister ship or, as if the present disposition were in force would have lost his membership also. similar was the case of kalp nath rai.


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 is in the lawful custody of the police:..". note that it says that he cannot vote. it does not say that he ceases to be a voter. there is difference in being a voter and being able to vote. it is clear that any voter can fight the elections. 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 other point is also likely to be questioned as an earlier judgment by a larger bench had held section 8(4) to be legally valid.


i am looking at the whole issue from another angle. what i feel is that this is a case of over activism. the supreme court has taken upon itself the drive to reform the election procedures. please note that i am not arguing that these reforms are not necessary. they are but are they worth giving the procedure a go by. in democracy the basic premises is that the people are supreme. by proxy, their representatives are supreme. they lay down the law. it is not for the courts to lay down the law. they are empowered merely to interpret it. going beyond that is going beyond jurisdiction and that should not be allowed. it is negation of democracy. section 8 (4) is quite clear in its language. anybody who is convicted and is sentenced to more than two years will not be disqualified immediately. he shall have the right to appeal and the operation of the orders shall 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 natural justice. the damage he suffers by immediate disqualification cannot be undone. it is just as if the person sentenced to death will be hanged immediately before waiting for outcome of appeal or mercy petition. when the language of the act and the intention of the parliament is clear, it can be interpreted only 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 lok sabha can be prime minister or something of that nature like the pakistan supreme court decided to enquire into conduct of the president without considering his immunity and disqualified the prime minister when he refused to go against the constitutional provisions. something of that nature may take place in india also.


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


maybe this was a diversion from the theme but the point is let everyone do his duty and not interfere with duties of others. election reforms are necessary but let these be done by the people and not courts. we have the stories of benevolent dictators who restored law and order, got rid of the corrupt, and generally helped the country to grow. but for this reason, we do not shelve democracy in favour of dictatorship. the ends may be important but the means are also important. if we hand over the governance to judiciary, it may be good in the short run but it is not the solution. it will be remembered that emergency imposed in 1975 was called anushasan parva by vinoba bhave. there were visible signs of efficiency all around, but the good times did not last. there were excesses in the name of efficiency. ultimately, it was evident that things did not improve because of emergency. something more is required, a change of heart, a resolve to improve, a determination to implement. if this is missing, the results may not fulfill the expectations. if the mp is barred from standing, the place will be taken up by his wife, his son, his daughter or, maybe, his servant, it would not be genuine democracy. the concerned person still remains in charge. we are conversant with the phenomenon of 'sarpanch pati'. the format changes, the substance remains the same.


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


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