Dinesh Kamath's Editorial 'Rule of Judiciary?' that was published in Newsband

Rule of Judiciary?

The Supreme Court’s decision to bar any person who is in jail or in police custody from contesting an election to legislative bodies has come as a surprise to many and as a relief to others.

There are some people who say that this judgement has left the door open for the practice of vendetta politics by ruling parties. All that politicians in power now need to do to prevent rivals from contesting an  election is to ask the police to file a case and effect arrest.

Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies. Here it would be wise on the part of the judiciary if it considered the suggestion of the Election Commission, which wants only those cases in which charges are framed six months prior to an election to be taken into account.

The effect of this judgement is that the sitting MPs and MLAs will now automatically be disqualified upon being convicted of a serious crime rather than after all their appeals are exhausted. Moreover, a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardized. Hence the courts should also consider the likely practical consequences of their judgments.

If you view from one angle you will agree that the court is right in its decision. There are more than 1000 MPs and MLAs in India with a ‘criminal background’ (that is around 30% of lawmakers).  When these elements are caught they almost never pay the price for their misdeeds. They protect each other. How can there be the rule of law and good governance when the character of such a vast percentage of those who make the laws and govern is so dubious?

But those who support democracy complain that the courts are now doing the governance. They question whether the views of majority in legislature should prevail or the view of one or two judges? They accuse the court of trying to usurp power. But the fact is that the court has only struck down an article of Representation of People Act, 1951 which made an exception for the politicians. Hence they are creating a wrong impression that the court is intruding in executive affairs. The court has simply declared as unconstitutional an article in an Act. Or in other words, it has put the common man and the political leader on the same footing. Equality and Rule of Law are the basic features of our Constitution which have to be upheld at all costs.