Judgement in the case will help decriminalise Indian politics in a major way.
New Delhi: A PIL filed in August 2016 in the Supreme Court of India, the hearing of which is in the final phase, is likely to give a massive push towards the decriminalisation of Indian politics when the judgement is pronounced in the coming days.
The PIL, filed by Supreme Court lawyer and BJP leader, Ashwini Kumar Upadhyay, had sought setting up of exclusive courts in every district to complete the cases pending against politicians, within one year and permanently bar convicted politicians from contesting elections, unlike in the present when a convicted politician is barred for a limited time and that too only when he has been convicted for an offence whose punishment is more than two years’ imprisonment. As of now, more than 4,500 cases are pending against MPs and MLAs all over India.
In the latest hearing of the case, which took place last month, the Central government had showed its “unwillingness” to bar convicted politicians permanently from contesting polls while responding to Upadhyay’s argument on why politicians—who in various court judgements have been considered as the “supreme public servant”—should not be barred from contesting elections forever, if a bureaucrat or a judge was permanently removed from the service if he or she was convicted for an offence.
The PIL filed by Upadhyay, the hearing of which gathered speed last year, has already led to anxious moments for politicians against whom cases, primarily corruption related, are pending.
Last year in October, Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy had written to the CJI S.A. Bobde, levelling serious allegations against the second senior most judge of the Supreme Court, Justice N.V. Ramana. The letter by Reddy, in which he also named other sitting judges of Andhra Pradesh High Court, came after a three-judge bench of the Supreme Court, presided over by Justice Ramana, who is hearing the PIL filed by Upadhyay, ordered a time-bound trial of pending cases against MPs and MLAs. The Supreme Court bench also directed the Chief Justices of the respective High Courts to ensure urgent listings of such cases.
As per a recent judgement in a separate case by the Andhra Pradesh HC, Reddy is an accused in more than 30 cases, out of which 10 cases have been registered by the CBI and “several” cases that have been lodged by the Enforcement Directorate (ED). This judgement by Justice Rakesh Kumar, who recently retired, has stated the cases of IPC against Reddy have been pending since 2011 and yet no charges have been framed in these cases, while asking “Is it not a mockery with the system?”
According to records placed in the court by amicus curiae of the Supreme Court in this PIL, Vijay Hansaria, there are about 175 cases under the Prevention of Corruption Act, 1988, and 14 cases are pending under the Prevention of Money Laundering Act, 2002, against sitting/former legislators (MPs and MLAs). These are in addition to the 4,442 criminal cases indicated to be pending against politicians that were presented before the court in the earlier hearings.
In what can be seen as an indication of the power wielded by tainted politicians, the Supreme Court, while hearing this case on 4 November last year, quoting the records that it received from various High Courts, said: “The High Court of Kerala has specifically placed on record that the police officials are reluctant to arrest and produce the legislators. The same issue is also being faced by the Calcutta High Court.”
As per the latest observation made by the Justice Ramana-led bench, the amicus curiae, on the basis of records gathered from the respective High Courts of the country, also found that: (a) There is no uniformity as to the setting up of Special Courts for MPs/MLAs throughout the country. In the states of Andhra Pradesh, Karnataka, Madhya Pradesh, Telangana and West Bengal, there is one Special Court for all cases against MPs/MLAs. In the state of Telangana, apart from Special Court for MPs/MLAs, cases are also pending before Special Court, CBI. In all other states, these cases are pending in respective jurisdictional courts; (b) there is also no clarity as to the courts which are trying offences under Prevention of Corruption Act, 1988. For example, in Madhya Pradesh (where 21 cases are pending) and in Karnataka (where 20 cases are pending) all these cases are pending before Special Judge (MP/MLA) at Bhopal and Bengaluru, respectively. In the state of Telangana, these cases are before the Special Judge, CBI at Hyderabad. In Delhi, cases under Prevention of Corruption Act, 1988, registered both by Delhi Police and by CBI are before the Special Court MP/MLA. Similar is the situation with regard to offences punishable under Prevention of Money Laundering Act, 2002; and (c) despite the taking up of this matter by the Supreme Court, and passing of various 32 orders since 2016, the backlog in pending criminal cases against sitting/former legislators (MPs and MLAs) has not declined.
According to records gathered by the amicus curiae, there were numerous reasons for the same: Firstly, the learned amicus stated that proceedings in a number of cases have been stayed by the various High Courts. Secondly, the number of Special Courts constituted/designated for the hearing and disposal of these criminal cases registered against legislators is grossly insufficient. For instance, states such as Odisha, Jharkhand, Assam and Goa, do not have a Special Court. In other states such as Madhya Pradesh, Bihar, Tamil Nadu, Karnataka, Telangana and Maharashtra, only one Special Court has been constituted. Thirdly, there is a dearth of public prosecutors in these courts. Additionally, warrants are not executed and witnesses are often not summoned. Sometimes, even the authorities concerned do not appear as required. As a result, there are a number of cases still at the stage of appearance and no effective prosecution is taking place. Fourthly, though authorities may formally initiate investigations by registering an FIR, or with a preliminary enquiry by the CBI, or by registering an Enforcement Case Information Report (ECIR) by the Enforcement Directorate, these matters are not taken to their logical conclusion, and often do not even result in the registration of a charge-sheet.
As per the submission of the amicus curiae, expeditious trial against politicians who are facing charges under Prevention of Corruption Act. 1988, Prevention of Money Laundering Act, 2002, Protection of Children from Sexual Offences Act 2012, Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, Companies Act, 2013, Negotiable Instrument Act, 1881 etc, Excise Act, 1944, Customs Act, 1962, Central Goods and Service Tax Act 2017 and Companies Act, 2013, should be conducted on priority.
While giving its order, the Supreme Court on 16 October, had stated: “One of the main objectives behind issuing notice in the present Writ Petition, and the various orders that have been passed time to time by this Court, was to ensure that criminal prosecutions against Elected representatives (MPs and MLAs) are concluded expeditiously. The Court was of the opinion that such special consideration was required not only because of the rising wave of criminalization that was occurring in the politics in the country, but also due to the power that elected representatives (sitting or former) wield, to influence or hamper effective prosecution. Additionally, as legislators are the repositories of the faith and trust of their electorate, there is a necessity to be aware of the antecedents of the person that is/was elected. Ensuring the purity of democratically elected institutions is thus the hallmark of the present proceedings.”
The Supreme Court bench its interim order has stated: “With respect to increasing the number of Special Courts and rationalizing the pending criminal cases, we deem it appropriate that, before passing any specific direction in respect thereto, it would be appropriate to direct the learned Chief Justice of each High Court to formulate and submit an action plan for rationalization of the number of Special Courts necessary. The learned Chief Justices while preparing the action plan should also consider, in the event the trials are already ongoing in an expeditious manner, whether transferring the same to a different Court would be necessary and appropriate.
“The learned Chief Justices of the High Courts shall also designate a Special Bench, comprising themselves and their designate, in order to monitor the progress of these trials.
“We further request the learned Chief Justices of all the High Courts to list forthwith all pending criminal cases involving sitting/former legislators (MPs and MLAs), particularly those wherein a stay has been granted, before an appropriate bench(es) comprising of the learned Chief Justice and/or their designates. Upon being listed, the Court must first decide whether the stay granted, if any, should continue, keeping in view the principles regarding the grant of stay enshrined in the judgement of this Court in Asian Resurfacing of Road Agency Private Limited v. CBI, (2018) 16 SCC 299. In the event that a stay is considered necessary, the Court should hear the matter on a day-to-day basis and dispose of the same expeditiously, preferably within a period of two months, without any unnecessary adjournment. It goes without saying that the Covid-19 condition should not be an impediment to the compliance of this direction, as these matters could be conveniently heard through video conferencing.”
According to Upadhyay, the final judgement in this case is likely to be delivered in the coming weeks. “The case is in the final stage; the court has already asked the lower courts to start a time-bound trial of the tainted politicians. We are now pushing for permanent debarment of convicted politicians. This will be a huge judgement and help a long way in strengthening our democracy, stopping netas from taking law in their own hands and making politics a cleaner profession,” Upadhyay told The Sunday Guardian.