The Law Vs The Legislator

Of these five-score MPs across the political spectrum, roughly one-third can be described as those involved in heinous crimes. A dozen have murder charges against them, another 10 have been charged with attempted murder. Around 11 of them are, in public perception, known as "dons".

This "representative" character of the 14th Lok Sabha was on display on its inaugural day as two of Bihar’s most notorious dons, Mohammad Shahabuddin and Suraj Bhan, sat sandwiched between home minister Shivraj Patil and former DGP and newly-elected Congress MP Nikhil Kumar on the backbenches. The irony of having to rub shoulders with the duo was not lost on Kumar, who has spent the greater part of his life putting felons behind bars. Kumar graciously returned Shahabuddin’s respectful pranaam (they are not only from the same state but broadly also on the same side of the political fence) and later wryly observed: "What can I say? The people elected him and the will of the people is supreme."

That pretty much sums up the government’s official line on the non-kosher ministers. Grilled on the issue, Prime Minister Manmohan Singh replied that the concerned MPs were "innocent until proven guilty" and hence, there was nothing wrong in some of them being accommodated in his council of ministers. At the same time, he promised a corruption-free, transparent government. That didn’t stop the BJP from stalling Parliament on the issue; a motion of thanks was passed without a debate, to the acute embarrassment of the incumbent government.

The Congress is being hoist on its own petard, points out lawyer Rajeev Dhawan. For two years, the party boycotted former defence minister George Fernandes in Parliament while he was under investigation for alleged involvement in defence deals. The rjd ministers in the spotlight—Laloo Prasad Yadav, Mohammad Taslimuddin, Prem Chand Gupta, Jai Prakash Yadav—are much further along in terms of the judicial process: they have already been chargesheeted. The PM justified the differential treatment on the grounds that the evidence in the Fernandes case was audio-visual.

Legally speaking, says Union science and technology minister Kapil Sibal, there’s nothing to stop Laloo & Co from becoming ministers. If the BJP’s objections are based on morality, then they haven’t a leg to stand on: "Their agitation is led by a former minister whose party president was filmed taking money and they are still allowing Narendra Modi to continue as CM despite the highest court in the land having indicted him."

The ruling party further justifies the induction of the Bihar brigade on the grounds that the BJP set the unhealthy precedent of allowing chargesheeted ministers into the Union cabinet, namely, all the accused in the Babri Masjid demolition case—L.K. Advani, Uma Bharati and Murli Manohar Joshi. The BJP’s response is that common sense dictates a distinction between a case relating to a "political movement" and one involving rape, dacoity or murder.

To which Union information and broadcasting minister S. Jaipal Reddy responds by saying that "being party to the demolition of the Babri Masjid is a far more serious crime than corruption. The distinction between issues involving corruption and political offences is not just devious and dubious, it is downright dangerous". Many Congressmen are inclined to give Laloo a long rope, along with credit for having stopped Advani’s rath yatra in its tracks."The BJP was in power for six years. Did they manage to get Laloo Yadav convicted?" asks Jaipal. Congressmen admit that the party’s defence of the rjd ministers comes out of the compulsions of coalition politics rather than conviction. Individually, they all agree, like CPI general secretary D. Raja, that "induction of criminals in politics cannot be justified". But then, a Congress minister observes, "Who are we to dictate to Laloo Yadav his choice of ministers? Let’s be clear that these are quota mantris. Anyway, if they have become MPs, why should they not become ministers?"

The crux of Manmohan Singh’s defence is that there is no legal bar against chargesheeted persons contesting elections and once elected, no statutory constraint against their becoming ministers. After all, it is the PM’s prerogative to select his own council (ironically, the very same argument was used by his predecessor to justify the inclusion of Advani & Co in his cabinet). That’s precisely the point, says BJP MP and former Union law minister Arun Jaitley. "The people have made them MPs, but appointing them as ministers is the PM’s prerogative."

The tit-for-tat argument can go on ad infinitum, observes Jagdish Chokker, IIM-A professor and member of the Association for Democratic Reforms, which initiated the debate on criminalisation by filing a PIL demanding disclosure of criminal antecedents by politicians in the Delhi High Court. "The situation today is such that a Manmohan Singh cannot get elected to Parliament but a don like Shahabuddin wins hands down in election after election. Politics has no room for decent persons because the system encourages criminals," he adds.

In fact, when the Election Commission’s stand that all candidates must disclose their police records was upheld by the apex court, political parties across the board joined hands to negate the ruling through an ordinance. The Supreme Court struck it down, making it mandatory for all candidates to submit an affidavit revealing the cases against them, if any. "It took the combined efforts of the apex court, the Election Commission and civil rights groups to force politicians to declare their criminal antecedents," observes Bibhu Mahapatra, activist and editor of Indian Legislator.

Mohd. Shahabuddin, RJDBihar’s best know don, who won the election from his plush hospital bed, enjoys clout among the minorities and faces charges of murder, kidnapping etc.

Jaitley’s chief argument is that the Congress and the Left parties, even as they try to pass the buck to the RJD, are not at all concerned about the issue of criminality. "Had they been, they would not have rejected, at the all-party meeting in July 2002, the NDA’s attempt to introduce a bill excluding persons chargesheeted in two or more heinous offences from contesting elections," he says. Sibal’s primary objection to that suggestion: "Why should returning officers have so much power, to debar a person? What happens if he gets acquitted later?"

Former chief election commissioner M.S. Gill says the NDA’s proposed 2002 amendment to the Representation of People Act was borrowed from the EC’s suggestion that chargesheeted persons should not be allowed to contest elections. The existing law (RP Act, Section 8) excludes only persons convicted of offences and sentenced to two years or more from contesting, he points out. "We thought Section 8 of the (RP) Act needs to be simplified and made more easily applicable. If a person is accused of a serious offence for which he can be convicted and sent to jail for five years or more and the court has framed charges against him, he should be disqualified," he says. The EC did take into account Sibal’s argument against the exclusion of chargesheeted persons, which is based on the principle of innocent until proven guilty.But, says Gill, "We propounded the doctrine of reasonable restriction.The rights of an individual are being blocked on the premise that the charges against him are serious and only one of his rights is being suspended—that of sitting in the sacred space of Indian democracy, the holy of holies.We said the rights of the individual must be weighed against the common good."

Former Chief Justice of India J.S. Verma agrees with the EC’s suggestion. "In my view, framing of charges by the court is the most appropriate stage at which criminals can be weeded out of the system. The law as of now is that only after the person has been convicted can he (or she) be barred from contesting elections. But what happens if he is let off? By stopping him at the chargesheet stage, you would at least have saved the system for some time." What about the distinction between political and criminal charges, as the BJP argues? It may not work, argues Dhawan. "It is not practical to renegotiate Section 8, which lists the offences for which you have to be convicted to be disqualified. If you tinker with the list, already a confused rag-bag of offences, you will then have to come out with a new one. Your proposed amendment would go the way of the Women’s Reservation Bill as political parties dicker over what to put in and what to leave out," he points out.

Sadhu Yadav, RJD The Bihar CM’s brother-in-law. Charge: attempted murder. Atique Ahmed, SP He has 37 cases against him, including murder charges.

Apart from legal loopholes, one reason why people accused of economic or criminal offences find it easy to get elected is the "first past the post" system. A "don" does not necessarily need to get the majority of votes to get elected; he just needs to ensure that none of the other candidates get as many as he does. "If the winner gets less than 50 per cent of the votes cast, there should be a repoll," says Verma.

Jaipal doesn’t think legislation will work. "The weakness of our criminal justice system is what ails the Indian polity and economy. Investigations are flawed, chargesheets poorly framed and the conviction rate very low. The system itself is defective." Jayaprakash Narayan of Loksatta, an ngo working towards electoral reforms, agrees: "Criminals are in demand because they are the only ones who can provide rough and ready justice. They are keen to join politics because then they can control the criminal investigation process that is supposed to control them. They portray themselves as Robin Hood caste leaders and have the money, muscle and manpower to ensure victory."

Narayan feels the only way of cleansing politics is to improve both the criminal justice and electoral systems. "You have to introduce proportional representation so that political parties can nominate good and decent people to the Lok Sabha," he says. Gill feels that intense propaganda works really well—better than legal safeguards—in putting pressure on political parties to give tickets to good candidates. There’s unanimity on one point: that you can’t leave it to the politicians to come up with a code of conduct for themselves. The civil society will have to work in tandem with the Supreme Court, the Election Commission and the media, if our rather grubby body politic is indeed to be cleaned up.

By Bhavdeep Kang, Poornima Joshi and Rajesh Sinha