Under the present set-up, getting elected to the legislature becomes a convenient shield to delay and extend the legal processes and escape conviction. The Second Administrative Reforms Commission noted that the "opportunity to influence crime investigations and to convert the policemen from being potential adversaries to allies is the irresistible magnet drawing criminals to politics".
Surprisingly, the current law goes overboard in offering protection to those convicted of criminal offences. Section 8(4) of the Representation of the People Act, 1951, or ROPA, allows a member of Parliament, or a member of a state legislature, to retain his or her seat in the House even when convicted, if he or she files an appeal or an application for revision within three months from the date of conviction.
This section defies the ideas of equality enshrined in Article 14 of the Indian Constitution (the right to equality before the law). While ROPA debars candidates convicted of serious offences from contesting elections for six years after their release from prison, Section 8 (4) of the same Act makes an exception for sitting legislators. This grants an unfair advantage by allowing convicted legislators to contest elections, while denying the right to those who are convicted but do not hold office.
Under the present system, political patronage and a "culture of adjournment" collude to prevent speedy trials of elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for the accused elected representative.
Criminalisation of politics does more than just subvert ethics in governance; it hits at the root of public engagement with the system. Not only is this trend highly demoralising for the general public, it also reduces people's trust in the system and forces them into apathy and disillusionment. Therefore, there is an urgent need to break the criminal-political nexus. This will go a long way towards restoring our people's confidence in the judiciary and in redeeming the commitment of the political class towards justice.
I recently submitted three Private Members' Bills in the Lok Sabha. These aim to attack the roots of the problem. My first Bill proposes to amend ROPA to remove the exception that allows MPs and MLAs/MLCs to continue in the legislature even after conviction. The second would set up fast-track courts for speedy trial (within 90 days) of criminal cases against all elected representatives. It would bring all MPs, MLAs/MLCs and members of panchayats and municipalities established under the state panchayati raj legislation under the Bill's ambit. The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.
In a country that is infamous for its snail-paced judiciary and the gargantuan pendency of cases in the subordinate and higher courts, this simple tweak that fast-tracks criminal cases against elected representatives with a mandate that all relevant cases be adjudicated within 90 days will go a long way towards resolving the problem. Unlike some other proposals that bar candidates from contesting elections if charged with criminal cases, this solution will not vitiate the presumption of innocence, and should be seen as a "privilege" given to elected representatives, an opportunity to quickly clear their names of malicious or frivolous allegations.
To ensure that these fast-track courts do not suffer from the same impediments as regular courts, my Bill provides that the number of judges to be appointed to each court must be decided on the basis of an objective criterion that takes into account caseload, pendency and, most importantly, the percentage of cases that remain unresolved after the stipulated deadline of 90 days. This provision will act as a check on the power of the executive to undermine the object of the Bill by changing the judicial strength of these courts.
Furthermore, to ensure that proceedings don't suffer owing to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the Code of Criminal Procedure, as it exists, calls for "consultation" with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Special public prosecutors are often appointed at the whims and fancies of the government and without adequate reasoning. This is done to suit special interests.
While commenting on the independence of public prosecutors in India, the Law Commission held in its 197th report that any legislation that permits arbitrary appointment of public prosecutors, without proper checks, would violate Article 14 of the Constitution (the right to equality before the law). Therefore, to ensure free and fair trials in courts, it is vital that the existing provisions of the Code of Criminal Procedure be amended.
My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state and answerable to the home department. It prescribes "concurrence" with the judiciary for the appointment of prosecutors at all levels. It also sets down an objective criterion to gauge the requirement of prosecutors. The Bill will also require a detailed and written explanation from the government about the reasons for each appointment to ensure transparency in the appointment of special public prosecutors.
I believe that even though reforming the entire judicial and political system may require significant investment and political will in the long term, lasting changes can be affected if we attack the roots of the problem in the short term. The Private Members' Bills that I have submitted are a step in that direction. Although I recognise that Private Members' Bills haven't been passed by our Parliament in decades, they do serve as a useful tool to pressure the government.
The perverse trend of criminalisation of politics and the inability of the criminal justice system to conduct timely and effective prosecution of offenders are the initiating causes in the causal chain of unfavourable outcomes. Therefore, any attack on the problems that plague our political system must begin with such legislation. The hope is that if enough public support can be drummed up, the government would be compelled to pass legislation to that effect.
The writer represents Kendrapara, Odisha, in the Lok Sabha. On Twitter, he is @Panda_Jay