Not unequal any more

Supreme Court deals with tainted politicians and their rights

The Supreme Court passed two verdicts last week that attempted to deal with the undoubted menace of India's increasingly criminalised politics. It is, however, not clear whether these verdicts, cumulatively, will deliver the results that the petitioners sought. In fact, some aspects of the judgments could lead to a further corruption of the investigative process in India, while barely making a dent in the problem that currently exists. In the first judgment, the Supreme Court struck down a section of the Representation of the People Act, 1951, which stated that serving lawmakers would not be disqualified even after they had been convicted of a set of notified crimes, if they appealed against the conviction within three months. Had they been convicted of those crimes when seeking to stand for election, they would have been disqualified, with no such recourse.

Essentially, the Supreme Court rightly saw that an exception was made for sitting members of Parliament or a legislative Assembly: if they appealed a conviction within three months, then they were excepted from the other provisions of the law, a facility not available to ordinary citizens. It was in the interests of natural justice that this be struck down, and that is what the Supreme Court did. Still, it is a matter of concern that the list of offences is broad - including not just heinous crimes like rape or murder, but also "hoarding", and that old standby of frivolous litigation, insults against national symbols. In large parts of the country, this could be seen as an invitation to misuse the law to try and unseat sitting legislators. Meanwhile, those sitting legislators who have a greater ability to convince a higher court to stay the verdict will continue to be protected.

The second judgment is more worrying. The Supreme Court held that only someone who was an "elector", or eligible to vote, could contest elections; since those in jail, even in police custody, cannot vote, they are also not permitted to stand for election. The Chief Election Commissioner and others had appealed a similar verdict by the Patna High Court, which the Supreme Court eventually upheld. But even a cursory survey of the headlines of the past few years can reveal how easy it is for a state government to put political opponents behind bars for one thing or another, especially in police custody. The Supreme Court has now given the executive a powerful weapon indeed against its political opponents.

It deserves to be said again that the aim of both judgments is laudable. Certainly, there should be some way in which the apparent immunity of powerful politicians should be reduced. And there should be no difference, in terms of the law, between sitting legislators and citizens; indeed, it is such differences that have given rise to discontent with the political class. But these steps deserve to be questioned for other reasons. They show, above all, a faith in the efficacy of the lower courts that few with experience would share. Essentially, local police, state governments and trial courts have been handed a great deal of power, and there is little reason to suppose that they will use it as responsibly as could be hoped.