In its latest verdict, the Supreme Court has once again come down heavily on the “alarming rise in the criminalization of politics". The court has directed political parties to list out on their websites the reasons for nominating candidates with a criminal background within 48 hours of such a nomination being made. The apex court has held that the merit of the candidate is as important as “winnability".

This is not the first time that the top court is issuing a directive to the executive or the Election Commission on this matter. In the past, the court has directed the government to enact laws to debar those involved in serious crimes from contesting elections and holding positions within parties. It has also ordered candidates to publish their criminal antecedents in the newspapers soon after filing nominations. Precious little has been done by the executive in this regard and the Election Commission has expressed its helplessness.

The most recent directive of the Supreme Court assumes relevance in light of the report that more than half the new elected legislators of the Aam Aadmi Party (AAP) in Delhi have serious criminal cases pending against them. What is likely to be the impact of the latest court directions? Four linked factors would need to be considered in this context.

First, who defines the threshold on what constitutes a serious criminal charge? The law is clear on debarring someone convicted in a criminal case from continuing as an elected representative or from contesting for such positions. How serious should a charge be to be considered serious when it comes to a case filed against someone who is seeking to contest elections? Political parties and leaders would argue that it is not difficult for a potential opponent or rival to file a case against a likely candidate. Should the seriousness of the case be defined in terms of prima facie evidence? Here again, those in the Opposition would make the point that given the control that the ruling party exercises over the law and order machinery, it could well be a weapon in the hands of the party in power to prevent rivals from fielding strong candidates. Further, the excruciatingly long delays in our justice system has seen cases dragging on for years, giving a new twist to what could be considered as a serious criminal charge.

Second, does the solution lie in ensuring greater visibility to the criminal cases against a candidate contesting an election? Every candidate contesting an assembly or Lok Sabha election is required to file an affidavit listing the cases pending against them. The contents of this affidavit are often highlighted by civil society groups through the media and during the election campaigns. While this exposure has to a certain extent embarrassed political parties and candidates, there is little empirical proof that it has reduced their chances of winning an election. So, the question that begs attention is whether greater visibility and publicity to cases pending against a candidate adversely affect the prospects of candidates or parties in an election? Once again, if one were to go by experience, there is little proof of this. The Delhi results are the most recent evidence of this.

Third, is the crucial question of winnability versus credibility and merit. The court directives seek to alert political parties to the fact that winnability cannot trump factors such as the integrity and public standing of candidates who contest elections. Political parties are sure to respond with the much repeated phrase “let the law take its own course". The tragedy is that one is not sure whether the law will actually take its full course within reasonable time and deliver justice. Seeking protection under “law will take its own course" has become a convenient mask for all political parties and candidates to hide behind. At the end of the day, parties would argue that let these issues be decided by the voter, who at the end of the day, is the supreme authority in a democracy. The question then arises whether we as a democracy have got insulated to the negative features of our candidates and often pass it off as accusations that flow from political rivalry and intense competition. Surveys have often found that there is considerable support for candidates who may not be honest but can get your job done as compared to those who are honest but cannot get your job done.

Finally, is judicial activism the permanent answer to executive inertia? Should the judiciary be constantly directing the executive to take action, which it anyway should as part of its routine functions? We clearly need a strong legislation to regulate the functioning of political parties and an unbiased and independent authority to implement it. We seem to be taking recourse to judicial activism far too often and making it more the exception than the rule.

Sandeep Shastri is pro vice-chancellor of Jain University, Bengaluru.

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