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Jul 11, 2013 at 05:46pm IST

SC order on decriminalising politics is a deterrent: Anil Bairwal

The Supreme Court has ruled that MPs and MLAs, convicted by any trial court, will stand disqualified from holding positions of public representation from the very date of conviction. Will this finally lead to decriminalisation of politics? Anil Bairwal, national coordinator of Association for Democratic Reforms, joined IBNLive readers for an interaction on the issue.

Q. When will this judgment come into implementation? Asked by: Praneeth

SC order on decriminalising politics is a deterrent: Anil Bairwal

ADR's national coordinator Anil Bairwal joined IBNLive readers on SC order on disqualifying convicted MPs and MLAs.

A. As the Supreme Court judgment says the verdict will be applicable immediately after the pronouncement of the judgment i.e. from yesterday (10 July 2013) afternoon onwards.

Q. 160 plus MP on serious charges. Why do they get nominated by the parties in the first place? Asked by: sundar1950in

A. 162 MPs in Lok Sabha have declared criminal cases against them of which 76 have serious cases against them. Although Political Parties have been claiming that they have been giving tickets to the most honest and suitable candidates but the fact is that Parties have been giving tickets on the sole basis of winnability which they think comes from either muscle power or money power. We don't think this is the most appropriate criteria to assess winnability. We hope that after this judgment the Political Parties will proactively take steps to ensure that candidates with criminal antecedents don't get tickets.

Q. Money, Muscle and Men - these three are the requisites to get people to vote for you. All these are acquired by illegal means. Will the present verdict eliminate the three Ms as requisites and get a true representative of common man to the parliament? Asked by: sundar1950in

A. Our Political system suffers from many problems like criminalization, extreme use of money power and lack of internal democracy and transparency within Political Parties etc. This judgment is a one step to address the issue of candidates with criminal cases in Politics. Politicians with cases usually go on for many years (sometimes for decades) which needs to be tackled separately (for which their is a PIL in the court to fast track all criminal cases against the elected representatives). Having said that, this judgement will act as a deterrent to the Political Parties to give tickets to the candidates with criminal cases, particularly because MP/MLAs will lose their seats immediately on conviction, this is really very significant.

Q. One unnamed leader in a newspaper today expressed apprehensions about 'political cases' or those who protest against government. Asked by: Prasad

A. There are two points to consider in this regard. Firstly, if the false cases are lodged against certain individual then court will scrutinize the merits of the cases and accordingly will pronounce the judgments on these cases. This judgment is applicable only to the convictions and not the pending cases. In general you would expect that court will give correct judgments in most cases. It seems like we suspect all other institutions on their honesty and integrity except of our politicians. Secondly, the purview of this judgment is purely on the ambit defined by the clauses 8(1), 8(2) and 8 (3) of the Representation of People Act, which includes all convictions involving 2 or more years of imprisonment. Most political cases, like dharna etc are neither listed in RPA section 8(1) and 8(2), nor invite punishment of more than 2 years.

Q. How many parliamentarians are there now who have been convicted with a prison term of more than two years and are on appeal? Asked by: sundar1950in

A. We are trying to get this data. The legislative assemblies and Lok Sabha and Rajya Sabha secretariats are generally informed when a sitting MLA/MP is convicted, but this information is not usually put on their websites. We are trying to get this data through various means including RTI. As soon as we have it, we will share with all.

Q. SC only talks of politicians who are convicted. But in India, politicians manage to drag cases for a life time. So, this judgment may not affect many politicians who only have cases registered. Isn't it? Asked by: rsg

A. True. The present Supreme Court judgment only talks about the convictions in a court of law as the criteria for instant disqualification of the sitting MPs or MLAs. Earlier there was no deterrence for Political Parties for not to give tickets to these candidates with pending criminal cases because even if any such candidate used to get convicted they would appeal against the conviction and continue to be an MP or MLA. But now since the convicted representative will immediately lose his/her seat Parties would be hesitant to give tickets to such candidates. The problem concerning pending criminal cases against MPs and MLAs being dragged in the court for many years (sometimes decades)is also paramount. We hope Supreme Court acts of the PIL to fast track the cases against MPs and MLAs.

Q. Don't you think that the politicians sitting in Parliament, irrespective of the party they belong to, would use the parliament to dilute the SC verdict? Asked by: Shyam Vadalker

A. Whenever decisions like this have come in past, there is usually reluctance from political parties to accept them. We will have to wait and see what they do this time. However, since political parties have been very vocal about the issue of criminalisation and have been claiming that they have not been giving tickets to such people knowingly, it will be difficult for them to do much about it. We are also hoping that they will take this verdict in the right spirit and now take steps on their own to get rid of criminals from politics.

Q. Provision held ultra vires. Judgment to be effective prospectively. Will those elected representatives who are on appeal be allowed to contest at next hustling? Asked by: sundar1950in

A. The Supreme Court judgment is applicable only prospectively and not for previous convictions. This judgment strikes down clause 8(4) of Representation of People Act that provided safeguards to the MPs and MLAs even when they get convicted in a court of law. Henceforth, the convictions will lead to instant disqualification for MPs and MLAs. The convictions that have taken place earlier than this judgement will not come under the purview of this verdict. But the MPs and MLAs who have appealed the previous convictions or who have pending cases against them, if they get convicted in future they will also invite disqualification instantly following this judgment.

Q. Does the ruling imply those whose have been convicted and appealed will lose their seat if their conviction is upheld by the next layer of judiciary or will they stay in office until all their appeals that is till the highest layer of judiciary is exhausted? Asked by: apoorva

A. The present Supreme Court judgment has ruled that henceforth if MPs and MLAs get convicted in a court of law then such a conviction will lead to instant disqualification of the legislators. But earlier convictions don't come under the purview of this judgment. Also, even the earlier convictions against which MPs and MLAs have appealed in the higher court and if they get convicted again they also will be disqualified under this Supreme Court ruling.

Q. I think the judgment is wrong and must be reversed. The appointments judiciary is questionable and not transparent, and especially the corruption in lower judiciary is alarming and political parties will use lower judiciary to further their interest, and it is dangerous for democracy and do you agree that remedy is worse than the disease? Asked by: kochappan

A. For a strong democracy, we need to have strong institutions, be it the judiciary, executive or the parliament. Various experts have also suggested other reforms like judicial and police reforms, that also need to be taken, and we all must put pressure on the government to bring those reforms. In this case, this is a very welcome judgment.

Q. I am hoping that the court would take a decision to remove the black money from the elections. Asked by: Prathap

A. Black money in elections is also a very big issue and steps must be taken to control it. Also, am not sure if court will be able to do everything for us. At some point, citizens will have to start putting pressure on the government to take right steps in this direction.

Q. MP and MLA are public servant. An official also a public servant loses his job if convicted for criminal offence. So why such was convicted persons on appeal allowed to be a public representative? If it is to continue, will officials also be allowed and stay back in the position? Asked by: sundar1950in

A. You are right, following a conviction in a court of law an elected MP or MLA should not have been allowed to continue to be the part of legislature and his/her membership should have been immediately terminated. But because of clause 8(4) of the Representation of People Act even the convicted MP or MLA used to continue in office and this clause should not have been there at the first place. That is why Supreme Court has struck it down and has called it ultra vires to the constitution.

Q. Does the judgment by the 2judge bench not amount to overturning the judgment of a 5 judge bench on the same matter and if so will it not be liable to be struck down on a review petition? Asked by: apoorva

A. This issue was also discussed during the hearing. Mr Fali Nariman who had appeared for Ms Lily Thomas had argued that the issue which was in front of this bench was not the one that was discussed by the 5 bench judge. The judgment also explains this point, so I think this is a very solid and well explained judgment and will easily stand the scrutiny of a review petition.

Q. Is there a possibility that this judgment may go for review by the full Supreme Court bench, leading to a contrary view? Asked by: haranathp

A. We will have to wait and see if that happens. However, if it does, we are confident that it will withstand the scrutiny as the judgment very clearly explains the rationale behind the judgment.

Q. Once convicted MP, MLAs should quit office subject to stay from higher court is this the correct interpretation of the verdict. Asked by: SRINIVASS

A. Now there will be no need for them to quit from the office. The current Supreme Court judgment says that following a conviction in a court of law an MP or an MLA will be immediately disqualified from being the member of either the Parliament or the State Assembly.

Q. Can this ruling be overturned by parliament by amending the relevant sect of art 102 and art 191? Does that require a constitutional amendment? Asked by: apoorva

A. Right now, this is a theoretical question. e.g. article 102 and 191 also says that you have to be a citizen of India to be able to contest elections. Can this qualification be done away with? Am not sure. This may require further debate.

Q. Don't you thing that SC should have passed judgment on disqualifying MP and MLAs even if court frames charges against them? Asked by: Ankur

A. There probably needs to be a separate PIL for that. The best will be if political parties themselves change the law to disqualify people from contesting elections on charges being framed. Election Commission and several others have suggested this to the government, but unfortunately, government has not done anything on it.

Q. Will the ruling imply that suppose for example Chautala's conviction is upheld by HC, he will be disqualified henceforth or will he retain the seat until his further appeals that is appeal to sc is also disposed? Asked by: apoorva

A. The SC judgment says that any conviction after the judgment will result in the membership of MP/MLA being terminated from the house. Since Chautala's conviction came before this order and if he has filed an appeal before yesterday's judgment, this will not affect his membership. However, unless he is acquitted by a higher court, he will not be able to contest next elections.

Q. Should we have cases against such "elected" MPs/MLAs fast-tracked? Asked by: S.Jain

A. Absolutely. There is already a PIL on this in Supreme Court for which Supreme Court has asked for response from the center and the states. We hope that the court will take it soon as this will be a very important step in the direction of curbing criminalisation from politics.

Q. How can Government stop this rule? What would happen if Government achieves it? Asked by: Praneeth

A. Technically Government may try to take steps to shield MPs and MLAs from coming under the purview of this judgment by passing constitutional amendments but again these amendments can be challenged in a court of law. And most probably the court will strike down such amendments that will aim to secure safeguards for convicted MPs and MLAs.

Q. Politics is a social service they say, then why have industrialists, criminals and others enter into the annals of Parliament. It is only because, in India you have to have money and muscle power to win the election. It has been patronised by the mainstream political parties. They knew about this, but its good someone is doing the cleansing act. It will indeed benefit the polity of India. But the tragedy of this country is every including me want only clean, good candidates who will work selflessly for the country, but it should not be ME. Unless people join one mainstream party or the other good candidates will not come. Asked by: S ESHWAR

A. True, citizens should come forward and participate in the political and democratic processes of out country. Only through large scale political engagement of masses, the better policies and laws will be legislated.

Q. Why cant the government and the political parties feel that a 'true' leader even if wrongly convicted will come out triumphant and that there is always a Higher Court to appeal to? Asked by: Biru

A. I agree with you. The merits of a particular case are assessed by a court of law. And the courts strive hard to provide justice to the individuals. We cannot doubt the integrity of the courts in all cases. It is also important for our political leaders to show respect for various institutions like courts.

Q. Why is the political class worried of this verdict they should know politics is neither profession or business and therefore service to the nation and if any verdict against them does not affect their business (unless they are corrupt) Asked by: SRINIVASS

A. I agree. They should not be worried, in fact they should welcome this judgment with open arms. There are also many good people in political parties, not all are self serving politicians, and we hope that this judgment will strengthen their hands.

Q. If the Govt. or the political parties feel insecure about the time delay in filing and delivery of Judgment in Indian legal system, have they ever thought of the plight of normal citizens who have faced the same condition? Asked by: Biru

A. This is a good point. If anything, government should try to improve our judicial process and make it fast and simple for everyone including for citizens. We hope that parties will take this in right spirit and start proactively working on things to make things better.

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