Lesson Time

A week ago the Supreme Court passed two key judgements. One was if a legislator is convicted they will be disqualified from their post on the same day. Previously, if an MP or an MLA is convicted, they would have three months’ time to appeal and during this period, can continue as legislators. Now, they lose their seat on the same day.

The second judgement came a few days later. In this the legislator cannot contest if they are jailed. This jail term need not be a sentence that they are serving, but can even be one where they are simply charge-sheeted and are in judicial custody. The only exemption is given to the category called ‘preventive custody’.

Although the public in general have cheered these judgements, the intelligentsia are worried. There have been editorials and criticisms that this is purely judicial overreach. They point out some of the unwelcome consequences of these two judgements, constitutional crisis with the first one and the outright misuse with the second one.

What do they fear? In the first instance, let us say Ram is an MLA. He gets convicted on a land-grab case. He ceases to be an MLA on the same day. Per our constitutional guidelines an alternative MLA should be selected within six months, so a by-election is held within three months and Krishna wins the election and becomes the MLA. Meanwhile, Ram appeals against his case in the higher court and this time he is acquitted. Technically he should get back to being an MLA, but, wait, there is someone already serving as the MLA in the same constituency!

The second judgement could be far worse. Consider this: James is the ruling party MP and, in his constituency, one Asif from the opposition party is gaining ground and is certain to win the next election. All James needs to do is, frame Asif on some crime and get the police take him in custody. Once he is apprehended on some criminal charges, he cannot contest the election. The opposition party will field some other candidate, who is obviously not going to be as strong as Asif and James would win easily. Asif might fight the case, prove his innocence and walk out free, but considering how speedily our courts functions, the elections would have been over by then.

If you are wondering how it is possible to frame false charges so easily, then you are not from South Asia. In the past, the rulers have easily achieved these by simply using the police to place just a small bunch of cannabis in someone’s house, or get one of their party cadres to file an FIR* at some local police station and then moved a force to the politician’s house during the small hours to arrest him.

So, are we saying these two judgements may cause constitutional crisis or are prone to misuse. Surely yes, these and worse scenarios are possible. Then are we saying that these two judgements need to be reviewed? Certainly not!

Let us imagine a different scenario. You are working for a software company and you’re wrongfully or accidentally framed in a criminal case. The police files an FIR and you’re taken into custody. The first thing your employer will do is to terminate your services, or in the best case scenario suspend you.

If someone is a dentist and he is framed in a murder of his own daughter, his practice simply ceases to exist. Even if he is acquitted of the charges, it might be years before he can revive his practice.

When Bal Thackerey, the leader of Shiv Sena a dominant right-wing party in Mumbai, died a few months ago, the entire Mumbai came to a standstill. A girl criticised it through a Facebook post and her friend ‘liked’ it. The party cadres thought she was ‘insulting’ the memory of the leader and reported to police, who, to everyone’s surprise, arrested both the girl who posted it and the girl who had liked it. This move was widely criticised even among all the politicians and finally the Mumbai High Court dismissed the case by slamming the police. Meanwhile 10 days of judicial custody were passed. One of the girls who narrated the experience said that those days were immensely traumatic for them and their families. Being arrested, even wrongfully, is deeply shameful and your family will be literally ostracised. And it happens to a lot of people.

There is no solace for people like these. The girls who did something most of us do ten times a day, post something in Facebook, demanded to know from the courts how the law is intended to correct the injustice done to them and how it intends to wipe off the agony that they and their families underwent.

There is no answer.

Of all the citizens of this country, it is our politicians on whom the law has been the most flexible with. An MP can even be charged of rape and murder and he can even be serving a jail sentence, but he can continue to be the Member of Parliament! A central minister can be charged with the scam to the tune of billions of dollars and despite mounting evidence, he will continue to feign innocence and use every tiniest loophole in the law to wriggle out of it. When it comes to fighting cases, be it corruption or criminal, no one in India has the kind of advantage a politician has. All through the trial phase he will use his position in the government to buy key witnesses and or threaten them to turn them hostile, use his unique position to access key documents and tweak or destroy them. Send the same police force against those fighting the case.

If tomorrow some stinging evidence pins Karunanidhi to the 2G scam? Is it possible to arrest him, leave alone convicting him? Or let us say a new revelation on DLF scam points straight to Sonia Gandhi. Can we even imagine a scenario of her spending even a day in jail? We all know what Jagan Mohan Reddy must have done to amass that nearly 400 crore of wealth within five years of his father’s tenure as the Chief Minister. And we also know that in the upcoming elections, his party is going to win large number of seats and he is going to become a central minister in the next government.

We have seen all these things happen. When it comes to attitude towards corruption we are all the same, but when it comes to corruption cases, there is nobody as shameless as an Indian politician. None of us escape the trauma of an FIR, but it seems to sit quite lighting on our politicians. Considering these things, we have no choice but to welcome those two Supreme Court judgements and hope that further review petitions do not weaken them. True, they may be misused and they may cause some crisis, but it is about time a political leader is made to experience what an ordinary citizen undergoes when charged with a crime. If someone’s life can be turned upside down for an innocent Facebook post, if someone’s life can be damaged overnight with false embezzlement charges, a politician’s life deserves to go on a tailspin.