Will special courts for politicians ensure justice?

The problem of criminalisation of politics has been lacerating the body politic of India for decades. Democracy is not bought for a song; the sacrifices and struggle of generations of our forefathers dismantled the colonial yoke and ushered in a democratic nation, which now faces threats from the unscrupulous and the dangerous.

Initially, Indian polity was quite clean, but the degeneration set in soon, with politicians taking the help of musclemen to win elections, which naturally required ill-gotten money to pay for. In the next stage, the toughs, instead of helping others, decided to contest elections and win power themselves. The phenomenon became pronounced in the 1970s and the situation continues to worsen with the ragtag and bobtail manning Parliament and state legislatures. According to the Association for Democratic Reforms (ADR), 187 members in the present Lok Sabha are facing criminal prosecutions. Out of them, 113 are accused of serious criminal offences.

The intention of the law has been to keep the polity untainted by criminals. So, section 8 of the Representation of the People Act, 1951, disqualifies anyone convicted and sentenced to two years of imprisonment or more from contesting elections. According to sections 8(1), (2) and (3), the disqualification continues for six years after the completion of the jail term.

However, section 8(4) created an exception in favour of sitting MP/MLAs distinguishing them from those wanting to contest elections. Thus, if someone is an MP or an MLA at the time of conviction, they would not be disqualified for three months and, if an appeal is filed against the conviction within that period, they would not be disqualified till the disposal of the appeal.

In July 2013, the Supreme Court struck down this section in Lily Thomas vs Union of India as violative of the Right to Equality guaranteed by Article 14 of the Constitution. It led to the disqualification of Lalu Yadav and some other MPs/MLAs. However, it could not disabuse the system of criminal elements as cases drag on and on. Lalu's case was decided by the trial court after 18 years. The Supreme Court found J. Jayalalithaa, then chief minister of Tamil Nadu, guilty of corrupt practices, but the verdict came after two decades, after her demise. Sasikala Natrajan, the main claimant to Jayalalithaa's mantle, could not realise her dream due to her conviction and is now in jail. Had the judgement been delayed further, she would have become chief minister.

The apex court has tried to address the seemingly insuperable problem in a public interest litigation (PIL) asking that anyone convicted be debarred from elections for life. The Election Commission had earlier supported the prayer of the petitioner. But in July last, during the hearing, the EC did a somersault, saying that it had not taken any decision and that the matter may rightly be in the legislature's domain. Appalled at the changed stance, the court berated the EC: "Can you afford to remain silent when it is within the domain of the commission? If you don't want to be independent, if you want to be constrained by the legislature even to express your views, say so freely." As former chief election commissioner SY Quraishi commented, it was an unprecedented rebuke to an institution that the SC has always been supportive of.

The apex court wants trials in cases involving legislators to conclude within one year. The central government has told the court that it has decided to set up special courts for the purpose. At the moment, 1,581 MPs and MLAs are facing prosecution. In all, 12 special courts are proposed to be set up, out of which two would decide cases involving 228 MPs while the remaining 10 would be set up in 10 states having over 65 accused MLAs each.

Quality of disposal

The setting up of the special courts raise many questions. Will they dispose of cases within one year and will it be judicious disposal? If the quality of disposal is compromised, it will only worsen the problem. There are many laws which mandate that a case must be decided within a particular timeframe. For example, under the Consumer Protection Act, 1986, cases must be decided within six months. But anyone who has had the misfortune of moving the consumer court knows how long it takes.

There may be many justifications for the inordinate delays but the real cause is the incompetence of judges and their utter lack of empathy with the victims of injustice. Another question is, if the trial court's judgement is reversed by the higher court and the convict is declared innocent, how can they be compensated.

Politicians facing criminal charges is not just a legal issue. Political parties are supposed to take the initiative to debar tainted people from elections. But it is not possible as the heads of many parties are themselves accused in corruption and criminal cases, and they are beholden to moneybags and goons.

A candidate's ability to win, by any means, is their only concern. People are also to blame when they vote for criminals knowing their antecedents full well. Candidates declare their assets, liabilities, educational qualification and criminal cases pending against them under the directions of the apex court. There are candidates whose details of criminal cases run into a hundred pages and yet, they get elected.

The special courts may give justice to legislators within a year, but what about justice for millions of common people who go
to court? The common man is concerned with his own problems. A man whose daughter has been raped and murdered is not concerned about the conviction of tainted legislators, but wants the rapist and murderer of his daughter to be punished at the earliest. But the trial goes on for decades, and he loses faith in the system. The whole system needs to be overhauled.