Commentators seem to have welcomed the Supreme Court’s refusal last month to let Sanjay Dutt contest elections. But the court’s activist decision contradicts its own precedent and even places in doubt the predictability of its decision making.
The actor was sentenced to six years of rigorous imprisonment in 2007 for keeping unauthorized arms and, according to the law, he is disqualified from contesting elections.
But it’s not that simple. Despite the legal prohibition against contesting elections, the Criminal Procedure Code provides for exceptional circumstances where a court may suspend conviction.
The Supreme Court did not find it fit to intervene in Dutt’s case. Yet it did so in the case of cricketer-turned-politician Navjot Singh Sidhu in 2007. Interestingly, Sidhu faced conviction for taking someone’s life. Does it mean that Dutt would have been better off had he killed someone rather than kept unauthorized arms?
The Supreme Court’s handling of the Dutt case differed from the Sidhu one on three grounds. First, the court refused to discuss the facts of Dutt’s conviction, claiming that it would prejudice the appeal that Dutt had filed against the order. This is apparently to protect Dutt’s interest. However, Sidhu’s case is replete with minute details of his conviction based on evidence from even before the case went to a trial court. In fact, the court even scrutinized the available evidence, and concluded that the evidence at face value appeared to be in favour of Sidhu.
Second, the apex court appears to be swayed by Sidhu’s decision to take a “moral high ground” and seek re-election from the same constituency. The court was moved by Sidhu’s gesture to abandon the relatively easier route of appealing; Sidhu instead resigned his seat altogether to seek a fresh mandate.
Third, the Supreme Court notes that Sidhu’s case is full of ambivalence. He was acquitted by the trial court but held guilty by an intermediate court (the high court). This option didn’t exist in Dutt’s case, where an appeal from the special court constituted under the Terrorist and Disruptive Activities (Prevention) Act went straight to the apex court.
It was also unprecedented on part of the Supreme Court to permit third parties to address their arguments in a criminal case. The court was willing to hear the concerns of the residents of Lucknow (where Dutt would have contested from) and even people from other parts of the country on the matter of criminalization of politics. Such willingness is indication of the court’s activist zeal in a politically charged matter.
In its enthusiasm to come down heavily on criminals’ entry into politics, the court glossed over the need to be consistent. And the court’s questionable distinction of Dutt’s case from Sidhu’s only brings in undesirable uncertainty. This can well jeopardize future cases.
Cleansing politics of criminals is important, but doing it through courts is a short cut, one that is wrong. Instead of making law on behalf of disgruntled Lucknow residents, it would have been wiser to throw the ball back in the people’s court, just as Sidhu had done. Electoral democracy may be a relatively longer route, but it’s the best guard against criminalization of politics. Political proxy battles fought through courts are as reprehensible as criminals in politics.
Rahul Singh is an assistant professor, National Law School of India, Bangalore. Comments are welcome at firstname.lastname@example.org