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A two-member bench of the Supreme Court in a landmark judgement declared Section 8(4) of the Representation of People Act (RPA) unconstitutional. Photo: Mint (Mint)
A two-member bench of the Supreme Court in a landmark judgement declared Section 8(4) of the Representation of People Act (RPA) unconstitutional. Photo: Mint

Supreme reaction

A frustrated polity is understandably grateful for electoral reforms but must guard against the excess of the new saviours

There have been several judicial pronouncements in recent weeks that could change the way politics is practised in the country.

A two-member bench of the Supreme Court in a landmark judgement declared Section 8(4) of the Representation of People Act (RPA) unconstitutional. This section allowed elected representatives—members of Parliament and state legislatures—convicted of crime to continue in office so long as an appeal had been filed within three months of their convictions. The ruling was in response to a public interest litigation (PIL) filed by advocate Lily Thomas and was argued by the veteran constitutionalist Fali Nariman.

In another judgement, the Supreme Court has upheld a 2004 Patna high court verdict debarring those in lawful police custody and serving jail terms from voting or contesting elections to Parliament and state assemblies even if they are enrolled as voters. This provision does not prevent those “under preventive detention under any law for the time being in force" from voting or contesting election. Keeping up its breathtaking pace of election-related judgements, the Supreme Court asked the Election Commission to frame guidelines to discourage political parties from promising freebies in their election manifestos as it shakes the root of free and fair elections and disturbs the level playing field for candidates. In an unrelated pronouncement, the Lucknow bench of the Allahabad high court banned caste-based rallies in Uttar Pradesh with immediate effect last week. The petitioner Moti Lal Yadav contended that rallies based on castes were against the Constitution and threatened to vitiate social harmony in the country’s most populous state.

Not one from the judicial stable but important nonetheless, the Central Information Commission (CIC) said recently that political parties are answerable under the Right to Information (RTI) Act. A full bench of the Commission ruled that six parties to whom RTI queries were directed fulfil the criteria of being public authorities under the RTI Act.

Taken together, this is an inflection point in the course of Indian politics. The rulings are not without controversy though. There is a general worry about judicial overreach. A five-member constitutional bench headed by Chief Justice R.C. Lahoti in 2005 had upheld Section 8(4) of the RPA. What exactly the next steps will be, no one knows, but there will have to be clarity about which ruling will apply. The “if you can’t vote, you cannot stand for elections" ruling is even more controversial but is likely to stand at present because no party will be keen to oppose the move in the public arena. The Uttar Pradesh ruling on caste rallies will likely be appealed in the Supreme Court. In any case, the stay does not extend to other states. The “freebie" ruling is a bit strange in that it recognizes individual sops (TVs, laptops, bicycles) as distortion, but accepts programmatic giveaways (jobs-guarantee scheme, food security law, etc.) as public policy and the prerogative of the executive.

Despite the controversies, these are landmark rulings that will impact politics. In the last 25 years or so, Indian politics has progressively moved down the path of four great scourges: criminalization, casteism, populism and black money. Caste gatherings for political purposes in Uttar Pradesh and Bihar have become de rigueur—Kurmi rallies, Kayastha mahasabhas, Koeri gatherings and Brahmin mahasammelans, to name just a few. Caste and religious considerations dominate most electoral contests and coalitions. According to the Association for Democratic Reforms (ADR), 30% of our current parliamentarians and legislators have criminal cases pending against them. The incumbent assemblies of Jharkhand (74% of legislators with criminal cases), Bihar (58%) and Uttar Pradesh (47%) are the highest among all states. Campaign finance has been at the root of much corruption and black money in India. Moves that mitigate the impact of these great scourges on Indian polity are very welcome.

Can we expect more?

Anil Bairwal, national coordinator of ADR, tells me that three more pending PILs with important implications are likely to come up. One pertains to the addition of “none of the above" as a choice in electronic voting machines. Even more controversial is the idea that if none of the above wins the vote then a re-election with new candidates should be called. In another PIL, former chief election commissioner J.M. Lyngdoh and others have filed to fast-track cases against members of Parliament and state assemblies, given the large number of cases against them. Ashok Chavan, former chief minister of Maharashtra, has challenged the EC’s authority to continue its hearings against him in the “paid news" controversy. This case is now being heard in the Supreme Court and will have important bearing on EC authority on disqualification of candidates related to election spending.

The rest of the society is finally moving to limit 25 years of excess in Indian politics. Electoral reforms are finding an avenue through PILs and the courts. A frustrated polity is understandably grateful but must guard in turn against the excess of the new saviours.

PS: Quis custodiet ipsos custodes? Who will guard the guards themselves? said Juvenal.

Narayan Ramachandran is chairman, InKlude Labs. Comments are welcome at narayan@livemint.com

To read Narayan Ramachandran’s previous columns, go to www.livemint.com/avisiblehand-

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