The ordinary masses of India may have forgotten a landmark judgement by the Supreme Court on May 2, 2002, which changed the course of scrutiny process of candidates contesting elections to become lawmakers.
But that the court itself has ignored that historic ruling is a matter of great shock and concern. Around that time, the Right to Information Act had not come in place, even though by default. It should have been abided by as India was a signatory to the Universal Declaration of Human Rights by the UN quite in 1948. Some of the freedom fighters who were active members under the Indian National Congress (INC) umbrella, got madly ambitious and had the outfit converted into a political outfit only to accommodate themselves as rulers of the newly independent India. Only Mahatma Gandhi had apprehended that such sinister moves might be made by the vested interests.
So, he had insisted on the Congress being disbanded conclusively. But by this time, he was past his prime and the dominant front-liners had taken command under the stewardship of Nehru, barring a few like Sardar Patel. Incidentally, the INC was founded by a British civil servant, Allan Octavian Hume, Dadabhoi Naoroji and Dinshaw Edulji in1885 only to form a platform for civic and political dialogue of educated Indians with the British Raj.
The founding members had wanted a larger role in the making of British policy for India. Oomesh Chandra Bonnerjee was the first president. It was transformed into a mass movement entity by Surendranath Banerjea and Sir Henry Cotton during the partition of Bengal in 1905 when the Swadeshi movement was also gaining popularity.
All that is intended to be mentioned here is that the independent India, with a few self-serving politicians, kept hidden several critical facts from the public with a view to remaining safe in positions of authority and power. Besides, those were the dark days of ignorance in the absence of miracle gadgets like the Internet and smart mobile phones.
As people got smarter and aware of their rights and the duties of the servants, the demand for right to know more and make the servants accountable on every front grew.
At the outset of the new millennium, people became crazy to ensure that the politicians desirous of contesting elections be unmasked wholly to be scrutinised on all their personal aspects including family background, education, antecedents particularly criminal history and the amount of property and wealth they possessed and whether or not they evaded state taxes. Countless activists joined hands to ignite a fuming agitation nationwide to have electoral candidates fully exposed on their status and public standing.
The sitting lawmakers from all parties, normally seen as mutual detractors and haters, fanged up immediately to pass a resolution to be rendered potent enough against any such personal scrutiny to be known well as they really were. PILs piled up at the apex court; and real good sense prevailed over the top judiciary to pass a strongly-speaking order making crystal clear that the candidates fighting to become lawmakers have to expose themselves wholly.
On May 2, 2002, a division Bench comprising Justices MB Shah, Bisheshwar Prasad Singh and HK Sema passed an order striking down the stupidest and most cowardly resolution by the Parliament to keep candidates immune from public scrutiny.
From that day on, the candidates have been forced to reveal all that is critical for the elector. Unfortunately, the people, with their short memory faculty, have forgotten the landmark judgment passed by godly judges. Later, Delhi High Court Chief Justice AP Shah too had blasted CJI Balakrishnan for being reluctant to come under the RTI purview in vain. A full apex court Bench upheld the ruling of legendary Justice Shah on January 12, 2010. Further later, a Supreme Court Bench headed by Justice Anang Patnaik ruled on April 10, 2013 that no convicted creature can ever fight elections. This verdict has virtually saved the nation of crooks entering public domain to a great extent.
All remained so nice and fit until a three-judge Bench headed by CJI Dipak Misra ruled on September 24, two days ago, that chargesheet in a criminal case does not disqualify a ‘neta’ for seeking votes and becoming a legislator.
The court vehemently refused to debar politicians facing criminal charges from contesting elections. It simply left the matter to the discretion of the Parliament comprising 34 per cent members with criminal antecedents to frame laws to keep criminals away from lawmaking processes. The court ruled that framing of charges in a criminal case against a politician or a person is not enough to debar him or her from contesting elections.
This ruling has given a huge relief to at least 1,500 legislators in the country. According to a report released in April this year by the Association for Democratic Reforms (ADR), a total of 1,580 MPs and MLAs have declared criminal cases against them, that too only because of the May 2, 2002 landmark judgment.
Outgoing CJI Misra could have done great service to the nation by only sticking to the ‘spirit of law’ rather than being trickily goody-goody to the crooks and criminals who were waiting with hearts skipping beats until the disappointing verdict came.
The judges of the Bench could not recall how a proposed name to become judge is instantly disqualified the moment any report of criminal antecedent lands in hand. Even one who has qualified in all tests to become a civil service official gets rejected if only police report some flimsy accusation against him, no matter if levelled by a fraud or a defamed character. A mere allegation is enough to have him or her disqualified, but to become a lawmaker of the land one need not be considered unsuitable!
To add to the woe of the general public, the same top court has yet further ruled around the same time that there exists no bar on MPs and MLAs from practising law and that Rule 49 of the Bar Council of India (BCI) Act was not applicable to lawmakers “who are not fulltime salaried employees”.
It was in March 2017 that a PIL was filed in the Supreme Court by BJP leader Ashwini Kumar Upadhyay seeking to debar public servants, elected representatives and members of judiciary from simultaneously practising other professions and to declare it as criminal misconduct.
“Frame a uniform policy relating to conflict of interest for public servants, people’s representatives and members of judiciary in spirit of Article 14 of the Constitution and declare the conflict of interest as the criminal misconduct,” the PIL had prayed. But the Bench of CJI Misra and Justices AM Khanwilkar and DY Chandrachud said there is no scope under the BCI rules to debar legislators from practising in court.
Upadhyay’s petition also had stated that many lawmakers hold corporate retainership and defend their lawbreaker clients in courts which is a matter of conflict of interest. It is not only immoral, unethical but also violation of the Rule 49 of the BCI. Incidentally, a lawyer loses licence if he or she engages in any other activity of moneymaking than legal practice, but a lawmaker is branded a part-timer at the legislature despite a hefty salary and uncountable amount of money by way of perks and personal benefits.
That the court has termed lawmakers as part-timers speaks so poorly of the judiciary because people do not need or trust part-timers to make their destiny especially when the benefits they get is much larger than that of the greatest of full-timers in many domains of nation building job. The Supreme Court, for sure, has betrayed the nation. The CJI will be remembered for the disservice he has rendered to the one odd billion citizens. A black day shall it remain in the history of judiciary.
(The writer is a core member of Transparency International, Odisha)
