Judicial enquiry is now a necessity

The judiciary hasn’t done enough to ensure speedy disposal of cases against tainted public representatives and convict them

By Author Anurag Tiwary | Abhinav Narayan Jha   |   Published: 1st Oct 2020   12:17 am

The Supreme Court’s ostentatious display of reluctance to question the Central government and its actions in the recent past has led to criticism from several quarters, not just lawyers, academia and politicians. However, this reputation took a volte-face when the court passed its orders in Ashwini Kumar Upadhyaya v. Union of India on September 16.

The court, in the petition, was considering the issue of speedy disposal of criminal cases against elected representatives to Parliament and State legislatures, including former MPs and MLAs.

The integration of crime and politics in India is not a recent phenomenon. Criminals enter Parliament and legislative Assemblies in spite of their tainted past. This primarily depends on the way Indians vote. Political scientist Milan Vaishnav, in his book ‘When Crime Pays’ has studied this in detail. Political parties field candidates with criminal history because of the money and influence they bring with them.

Huge Pendency

Elections are a costly affair, and money is needed to stay in the competition. Many voters are manoeuvrable and purchasable. Moreover, Indians vote based on identity and religion as well as rhetoric and flag-waving jingoism, flavoured with a pinch of demagoguery. Usually, candidates with criminal records suit adequately for these purposes.

The report, relating to information regarding pending cases against such public representatives, which was presented before the court, reveals shocking numbers. Close to 4,500 cases are pending against such representatives in courts across the country. Many of these are pending for decades. The nature of these cases ranges from serious to heinous offences. Other cases include corruption, money laundering, destruction of public property and cheating.

What is even more shocking is that a large number of these cases are stuck at their most initial stages and many have even been stayed by the respective high courts. The toppers in the list of States with the highest number of pending cases are Uttar Pradesh followed by Bihar, Tamil Nadu, Maharashtra, and Odisha.

Many Barriers

Major challenges to trying cases against sitting and former public representatives and bringing them to a logical conclusion are the structural and institutional barriers that exist within the system itself. For instance, in spite of repeated directions given by the Supreme Court, various States have still not constituted special courts to try such offences. The States that do have such special courts, they are not adequate in number. Many States have just one special court for this purpose. This shows the lack of institutional uniformity in trying these offences.

Other issues include continuous adjournment of the proceedings, lack of public prosecutors, widespread corruption at the stage of investigation and the threat posed to witnesses. In cases that are pending since the 1990s, witnesses have either vanished or probably died. The 239th Law Commission Report had taken note of such barriers. The commission, in its report, had stated that cases against influential persons in public life need to come up for “special focus” because “experience shows the occurrence of long delays both in investigation and trial”.

Criminalisation in Politics

Taking note of these issues, the court unequivocally stated that criminalisation in politics is against the basic hallmarks of democracy. If the purity of the institution has to be maintained, the electorate must be “aware of the antecedents” of its representatives. This way the voter makes an informed choice. The court in its order, inter alia, has directed Chief Justices of various high courts to formulate an action plan and create a mechanism where there is judicial accountability.

However, it has to be understood that significant advances have to be made if we wish to transform India into a truly democratic country. Elections should no more be won based on a pompous show of muscle power by strongmen and fringe elements’ use of religion and their subsequent provocation leading to riots.

Indeed, identifying real perpetrators behind political or religious violence during an election is almost impossible. Orchestrators of political violence remain unnoticed while they employ their sycophants and hired goons to create havoc. This serves two purposes – keeps you beyond the reach of the judicial system and even if a case is registered, the wrong people get convicted.

Political parties issue whips and send out a statement saying they don’t subscribe to the violence or the actions of the particular fringe group. However, innocent people get killed. Subsequently, exploitation of figures of speech by larger than life politicians, after such riots, helps them win elections and brings them back to power.

Lifting Veil

The judicial system needs to identify such public representatives, lift the veil from such acts of violence and convict those who have unduly benefitted from such incidents of communalism. Although statutory provisions exist to cater to such situations, convictions are rare because the law imposes an undue burden on the prosecution to prove what they claim beyond every reasonable doubt.

We have certainly gone past the days of ‘booth capturing’, but new forms and methods of winning elections have been devised by cyber cells of political parties. Dissent is curtailed online, critics are trolled, citizens are frequently labelled as anti-nationals and a new wave of ‘Internet Hooliganism’ is given birth to. Abuse on social media by cyber cells of political parties has become a norm.

Artificial intelligence techniques employed by Facebook and other social media organisations to curb such abuse seem to be biased when required and function effectively at its convenience. Digital identities are being utilised to manipulate and condition voters by data mining, propagate abuse and spread fake news. These unduly benefit public representatives and our IT laws do not have spine enough to cater to such unique circumstances. What dies in the process is democracy!

Although Ashwini Kumar Upadhyaya is a significant development in ensuring judicial accountability concerning speedy disposal of cases against sitting and former MPs and MLAs, however, it has to be understood, that we haven’t done enough as a state to legally recognise new tools of political oppression. Judicial enquiry is the need of the hour!

(Anurag Tiwary is a student of National Law University, Visakhapatnam, and Abhinav Narayan Jha is a student of law from Amity University)

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