Saturday, Aug 13, 2022

Poisoned Source

Supreme Court's welcome waiver of the requirement of government sanction for investigations against politicians has predictably invited the wrath of the political class. Will the judiciary find the determination and integrity to stay the course? The

India's Constitution places the elected political apparatus at the unambiguous apex of the system of governance. All power flows from this fountainhead, and it has long been poisoned by corruption and criminality. Despite the repeated scandals and the accompanying, though fitful, commotions in Parliament, politicians have, by and large gone unpunished for their wrongdoings, and there has been a virtual and consensual immunity against effective investigations and judicial action.

Suddenly, this seems to be changing. Within days, a cabinet minister has been convicted for murder and a member of Parliament for culpable homicide. Almost simultaneously, the Supreme Court has held that there is no need for government sanction to initiate investigations for corruption against Ministers and MPs. At the same time, there is evidence that family members of prominent politicians and senior officials will no longer be exempt from the authority of law.

The decision in the Priyadarshni Mattoo rape and murder case, in which Santosh Kumar Singh, the son of a senior police officer, received the death penalty, appears to have opened the floodgates. There is now new expectation in the Jessica Lal and Nitish Katara murder cases, both involving sons of politicians, as well as a number of other cases involving prominent personalities and their kin. Is this the dawning of a new era?

Not necessarily, though the imperatives of change are growing stronger. Unsurprisingly, political resistance to such change is also crystallising. In the wake of the Supreme Court decision waiving the requirement of government sanction for investigations against politicians, there appears to be something of a consensus in Parliament that 'judicial activism' is overreaching its acceptable bounds. Given the current composition of the political classes and the endemic dependence of political parties on criminal elements, it is difficult to imagine that they will give up without a fight.

The judiciary will certainly come under significant and increasing pressure now, and it remains to be seen whether it will find the determination and integrity to stay the course. In such cases, significantly, it is evident that public sympathies and support incline overwhelmingly in favour of judicial action, but such a mandate has long existed, and has been effectively subverted by both politicians and the legal fraternity over the decades.

While these and future judgements on cases involving politicians and other stakeholders in the power system will have a certain chilling impact on the delinquent elements in politics, their potential to herald a political revolution remains limited. The rot lies in the electoral system, and as long as criminals can continue to secure access to the nation's Parliament, Assemblies and other elected offices, judicial action—especially within a system where extraordinary delays are routine—can only secure limited effect. It is useful to note that the recent decisions against politicians are for crimes committed 12 and 18 years ago.

Politics has become the ambition of every successful criminal today, representing a culmination of ill-gotten power and conferring—with still-rare exception—immunity for past crimes. In the 2004 Lok Sabha election, 518 of the 3,128 candidates had criminal antecedents. Of these, more than a 100 found a seat in the 14th Lok Sabha, and at least a few were elevated to the ministerial berth.

With Assembly Elections due in Uttar Pradesh—one of the states most afflicted by the criminalisation of politics—there are reports suggesting that the criminal mafia has decided to put up its own candidates in a direct bid for power. Significantly, no single political party has sought the high ground in this regard, with every political formation giving tickets to criminals during elections. And when a scoundrel like Abu Salem is finally trapped in the web of the law, his first and natural instinct is to make a bid for electoral legitimacy to escape the consequences of his many crimes.

There is many a terrorist across this country who has 'surrendered' and found himself a place in state Assemblies, and many other terrorists, responsible for scores of the most vicious crimes, who are respected 'political leaders' engaged in 'direct talks' with India's establishment—including the country's Prime Minister.

The sheer contempt for the rule of law that is entrenched in India's political system will have to be addressed before any permanent gains can be registered, and electoral reforms lie at the heart of the necessary transformation in this regard. The Election Commission (EC) has made some efforts—necessarily feeble, given the constitutional limitations to its powers—to bring a greater measure of accountability into the system.

Disclosure of criminal antecedents, including all pending cases or charges against candidates, is now mandatory, after a 2002 Supreme Court judgment, for candidates in elections. But this has had little impact, since there is no significant stigma attached to such a criminal record, no consequent disqualification, irrespective of the gravity of crime, and no reluctance on the part of the electorate to elect criminals. A number of other recommendations by the EC lie buried deep, in the ample cold storage of well-intentioned proposals for political and administrative reform, at Raisina Hill.

It is ironic that a person applying for any job in government—from peon to the top administrative echelons—is required to furnish some attestation of 'good character', but there is no such requirement for those who are to frame the country's laws and to wield the highest powers of the land. What is needed is the importation of a process comparable to the provisions of Article 109 and 110 of the Code of Criminal Procedure, into Election Law, under which an authority established by the Election Commission in each state engages in an extended process of scrutiny of each candidate to determine whether an individual has criminal antecedents, is a 'bad character' or habitual offender, or constitutes a palpable danger to society—issues that would need to be established through transparent processes of quasi-judicial assessment. A determination that an individual falls into one or more of these categories should result in automatic disqualification. For this purpose, the provisions relating to, and time required for, scrutiny of candidature would need to be significantly extended.

Regrettably, it is evidence of 'good character' that is often a disqualification in the darkening world of India's realpolitik. This is the source and root of the multiple crises that afflict the country, the rot that is eating away the nation's vitals. Unless this source is cleansed, the occasional glimpse of light, the rare political criminal brought to justice, may provide theatrical relief to a despairing people; but it cannot heal the malignancy.

K.P.S.Gill is a former Punjab DGP and is currently advisor to the Chhattisgarh government on Naxalite affairs. This piece first appeared in the Pioneer