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Why Silence On Life Ban For Convicted Politicians: Supreme Court To Election Commission

The Election Commission on drew the Supreme Court’s ire by its conspicuous silence on a critical issue pertaining to decriminalization of politics – Whether convicted MPs and MLAs should be barred from contesting elections for life? The Apex Court also wondered aloud whether the Election Commission’s reluctance to give its “free view” was influenced by the Centre’s categorical stand against life ban on convicts from contesting polls. No prizes for guessing that the very ability of Election Commission itself to take independent and impartial decision not influenced by the Union Government in any manner has come under a dark cloud as the highest court of the country has questioned it very strongly without mincing any words!

The Supreme Court also wondered whether the Election Commission’s reluctance to give its “free view” was influenced by the Centre’s categorical stand against life ban on convicts from contesting polls. It must be recalled here that after stating on affidavit that it supported the demand to impose life ban on convicted lawmakers, the Election Commission did a flip-flop by suggesting to the Supreme Court that it was not the authority concerned to comment on the issue. Why the Election Commission did such a flip-flop is for them to explain.

Taken aback completely by the poll panel’s stance and flip-flop on the crucial issue, the Apex Court told the Election Commission that it cannot afford to remain silent and sought its views. It is really amazing as to why the Election Commission did such a flip-flop. The Apex Court was hearing a PIL filed by a lawyer Ashwini Kumar Upadhyay.

A Bench of Justices Ranjan Gogoi and Naveen Sinha read out a portion of the Election Commission’s fresh affidavit which said it supported “the cause espoused by” petitioner Ashwini Upadhyay, who has sought setting up of special courts for speedy trial of criminal cases faced by elected representatives. He also said those convicted should be “uniformly barred from the legislature, the executive and the judiciary”. There can be no disputing or denying it!

Ashwini Upadhyay in his petition canvassed the point that for lawmakers who adorn the high office of the legislature, there is a bar on contesting elections for a term of six years if convicted for an offence punishable with two or more years of sentence under the Representation of the People’s Act. This is not the case with the executive or judiciary where a bureaucrat or Judge, convicted of a similar offence, gets debarred for life. Rightly said! Why this raw discrimination? Why are politicians exempted from life ban? Why so much of undue leniency towards them alone? This alone explains that why 30% of lawmakers are alleged lawbreakers and still there is no life ban on them! Shameful!

That the Centre, in its affidavit has said that the prayer sought by the petitioner seeking life-time bar on convicted lawmakers was not maintainable and the plea should be dismissed. It was for this reason that the Apex Court sought the view of Election Commission. I very strongly disagree with Centre and it is my humble but firm submission that what message are we sending by allowing dacoits and rapists to become Member of Parliament who are involved in killing so many people and raping so many women? Why should politicians have the liberty to kill anyone, rape anyone, loot anyone and amass billions of rupees by corrupt practices and still just be barred for just 6 years and after 6 years again do the same crime only to be barred again for 6 years? How long will politicians be given the long rope to commit one crime after the other only to be barred temporarily for 6 years and then again commit crime once again with full impunity? Are politicians above law and Constitution? Is this not a worst mockery of the rule of law? This alone explains why many politicians even after being involved in riots and in killings of innocent people are still allowed to become not just MPs and MLAs but also Ministers, State Ministers, Cabinet Ministers and even Chief Minister or even the Prime Minister itself! How can this be ever justified on any ground? Politicians are expert in terming it “political vendetta and political conspiracy” and brazenly sticking to the higher and highest offices with full impunity! Most disgraceful!

This alone explains why increasingly more and more criminals are joining politics and this is clear if we see the rising figure of the number of criminals in Parliament what to talk about State Assemblies! What trend is being set? This is the dirtiest double standards that all parties are following in India and no Government in Centre wants to stop this trend! Why should politicians be exempted from life ban if they are found to be involved in any kind of wrongdoing? Are they above law?

The Bench of Justices Ranjan Gogoi and Navin Sinha said in no uncertain terms that, “Here is a citizen of India who has approached Court with a specific prayer to debar convicted lawmakers for life. You are the Election Commission of India. You must say either ‘yes’ or ‘no’ on whether you are supporting the petitioner. But can you say I will be silent? No you cannot.” The Apex Court drew the Election Commission’s attention to the affidavit filed by Election Commission in response to the PIL where it stated, “The answering respondent (EC) supports the cause espoused by the petitioner.” The counsel for Election Commission Mohit D Ram pointed out that the Commission is not the authority concerned to take a stand on this issue.

The Bench asked Election Commission: “If you denude your power of independent thinking then say so. If EC feels constrained by the view of the executive to the extent of giving up its free view by all means say so. Feel free. If you feel constrained by the Legislature, then let us know. If you are even constrained to the extent of giving your view, feel free and say so clearly.” But the Judges of Apex Court – Gogoi and Sinha felt that it was for the Election Commission to take a stand one way or the other since it is a powerful, independent authority. It is most astounding to see that the Election Commission is not taking a clear and consistent stand on this. It must pay heed to what the highest court of the land has said so explicitly!

When the Apex Court asked the Election Commission’s lawyer about the EC’s position, he replied, “The Commission is not taking an adversarial stand. We feel the issue (debarring convicted politicians) is in the legislative domain and we have no stand.” This response is just not in order. They should have taken a clear stand on it.

While referring to the affidavit of Election Commission, the Bench said, “Paragraph eight of your counter-affidavit is very clear that you are supporting the petition. If you say we should read between the lines, we do not think why we should find out any other meaning of what is there in this paragraph.” Reiterating that a stand must be taken on the issue, the Bench added that, “Is silence an option for you? Silence is not an option as you cannot afford to remain silent. You must say either yes or no. How can you be silent? If you feel constrained by the legislature then let us know.” It is high time and now at least the Election Commission must break its silence and take a clear and firm stand on it.

It is most unfortunate to see that the Centre has made its stand clear on the burning issue by opposing the petition. On one hand, PM Narendra Modi wants that politics should become clean and politicians with criminal record should not be given entry in politics and on the other hand it is not prepared to make any law permanently barring the entry of convicted politicians from entering politics! This is just not done! You cannot have it both ways! You cannot hope to keep the cake and eat it too!
As if this is not enough, in its affidavit in April Centre had said that the Apex Court should not pass orders on the issue as this is a matter best decided by the Parliament. Rightly said by Centre but why is it not deciding? Why since last more than 70 years it has failed to take a clear stand on it? Why Centre and Parliament takes no time in increasing its salary and perks and other allowances and filling all seats which become vacant on death of any MP or MLA? Why no such hurry in case of imposing life ban on convicted politicians or even in filling up Judges vacancies and due to which most of the High Courts have more than half of the seats lying vacant as Calcutta High Court very rightly pointed out just recently?

Let me be upfront in asking: Why criminals have the liberty to contest elections even from jails when other ordinary convicts cannot even vote? Why criminals like thugs, dacoits, rapists, murderers and corrupt are allowed to become law makers? What sort of law will criminals make? Why different standards for public servants and politicians?

In the ultimate analysis, crime will only multiply rapidly like cancer and AIDS if Centre decides to continue with its most discriminatory practice of barring anyone from becoming public servant like bureaucrat or Judge or Army Officer or even a clerk even if one wrong case has been filed against him/her but simultaneously allowing professional dacoits, criminals, mafias, rapists to become law makers by just labeling all allegations against them as “politically motivated”! This is most atrocious! It cannot be justified under any circumstances!

Needless to say, there must be higher standards of probity for becoming an MP or MLA and not the other way around as we have been seeing most unfortunately for the last 70 years! Both Election Commission and Centre must take a very strong and clear stand on it in the long term national interests and should rise above just thinking about narrow and vested political interests alone! Free and fair elections which form the bedrock of any democratic system are possible only if criminals are kept out.

If dreaded criminals are not banned and allowed to contest even from jails as we are seeing most unfortunately right now before our own eyes then how can our democratic system be clean? Just by booting out public servants or the aspirants to government jobs even if someone wrongly frames them in a criminal case? Certainly not! I hold no brief for corrupt public servants or anyone else but yes I do feel the pinch when I see that politicians smirk at law and treat it with utmost contempt by fighting elections from jail even after being accused of rape, murder, dacoity or any other criminal act! Is this fair? What sort of banana republic have we become? Why can’t there be more strict rules for becoming MPs and MLAs because it is they alone who make all rules for us and have the luxury of wasting crores of rupees for just shouting most brazenly in Parliament? Why should they not be penalized heavily when they create ruckus in Parliament and State Assemblies and bring a bad name to our country as a whole? Why should they not be banned for life just like other public servants when they misbehave and publicly slap someone?

On a concluding note, let me say this point blank: Our politicians who are ruling in Centre as well as in States will never allow a life ban on convicted MP or even convicted MLA and will forward hundred excuses to defend them on one pretext or another! Unless this is done, all other reforms that Election Commission plans to usher in like making offence of bribery cognizable, amendment in provision concerning election expenditure, prohibition of advertisements in print media 48 hours before the close of elections and prohibition of paid news will serve very little purpose or just no purpose at all and are just hogwash because criminals will find 100 ways of breaking all laws and that too from jail itself by holding conferences there and organizing everything from jail itself as we see also most unfortunately in our country but no party is ready to end this deadly malaise forever as it does not serve its vested political interests! Most unfortunate!

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