OPINION: CJI asks how a convict can head a party?


None other than the Chief Justice of India (CJI) Dipak Misra has directly questioned the logic behind having a criminal and corrupt person to head a political party. Going ahead, the CJI also said that such a lapse was a huge blow to the purity of the election process. Absolutely right!

Not stopping here, the CJI Dipak Misra heading a three-Judge Bench comprising also of Justice AM Khanwilkar and Justice DY Chandrachud observed that, “Far worse is the prospect of democracy when such a criminal has the power to choose candidates for elections under his party’s banner”. Who can deny or dispute this? When a person who is himself/herself a criminal, how can he/she choose good candidates to contest elections?

Different parameters for politicians

It would certainly not amount to an exaggeration if I say that no democracy can survive long where such criminals and convicts are allowed to have a free run in election process by being allowed to head a party and choosing candidates of their own choice to fight elections! When for getting any government service, there are so many strict parameters like there should not be even a single case pending against the candidate and even if someone maliciously lodges FIR still that candidate is barred from getting any government job then why such a long rope has been extended to politicians that even after becoming dacoit like Phoolan Devi and killing many people, you can still later enter Parliament and become MP and similarly head political party and even contest elections from jail as we see in case of many politicians like Mukhtar Ansari etc? Can anyone explain this to me?

I have not even an iota of doubt in my mind that politicians being allowed to get away even after doing anything is the root cause of corruption not just breeding in our society but also spreading its tentacles far and deep inside! Why are politicians not barred just like other aspirants of government jobs once even an FIR is lodged against them and their name appears in police case diaries? Why no laws have been made till now in this regard? Why politicians want no action on this score to be taken?

Needless to say, the CJI Dipak Misra very rightly pointed out that, “A convicted person can’t contest election. Then how can he form a political party and select candidates? What you cannot do individually, can you do collectively through some agents? That is our question?” He also very rightly pointed out that, “A criminal deciding who the people should vote for by itself goes against the basic tenet of democracy”. No person in his right senses will ever question what the CJI has said so elegantly!

Against Supreme Court judgment

To put things in perspective, the CJI Dipak Misra also did not dither in pointing out explicitly that, “This goes against our judgments that corruption in politics to be ostracised from the purity of elections”. He orally observed this while addressing the government and Election Commission. It is a sad commentary on the state of affairs of our country that while politicians don’t waste a minute in barring candidates from getting any government job even is someone maliciously files a false case against him/her but when it comes to politicians then even after committing the most heinous crimes there is still no bar imposed and yet politicians always keep talking of “high moral ground”! Have they ever taken such “high moral ground” themselves and barred all those with criminal background from heading parties or contesting elections or giving them undue prominence just to win elections?

Truth be told, the CJI very rightly pointed out that, “So is it that what you cannot do individually [that is to contest in elections], you can do collectively through some of your agents?” He also rightly said that, “A man cannot directly contest in an election, so he constitutes a group of persons to form a political party and contest in an election. People could form an association to do philanthropic activities like having a hospital or a school. But when it comes to … governance, it is different.” Why don’t our politicians pay heed to what our CJI Dipak Misra is saying so explicitly?

It would be pertinent to mention here that Additional Solicitor General Pinky Anand said the government needed time to file a response. There can be no denying that the Supreme Court rightly said that banning convicted persons from becoming office-bearers of parties would be in consonance with its past judgments against corrupt politicians. The Supreme Court made it amply clear that it was of the view that a convicted person – criminal or corrupt – cannot head a political party.

It needs no rocket scientist to conclude that one cannot but concede to what the Supreme Court has said on this so categorically. But it sought the final view of the Centre within two weeks on the matter! The matter is fixed for final disposal on March 26.

It must be recalled here that in December 2017, the Supreme Court had agreed to examine whether the Election Commission should be empowered to de-register a party because a convicted person had formed it or was a crucial office-bearer. Advocate Ashwini Kumar Upadhyay who had filed the petition reasoned that if a convicted person was banned from elections, he or she should also be barred from leading a party and controlling its other elected members. The petition specifically names leaders such as Lalu Prasad Yadav of the RJD who was convicted in the fodder scam and Om Prakash Chautala of the INLD who was found guilty in the junior teachers recruitment scam case.

No doubt, Ashwini Upadhyay, the Petitioner, had also very rightly pointed out in his petition that, “Presently, even a person, who has been convicted for heinous crimes like murder, rape, smuggling, money laundering, sedition, loot, dacoity etc, can form a political party and become party president”. Is this not an open mockery of our democratic system? Yet politicians shamelessly continue to defend status quo without bothering for the perilous consequences that emanates directly from it! This is what is most hurting to see but have to accept it as an unpalatable truth which has engulfed our nation!

Truly speaking, it was in November 2017 that the Election Commission had said that there should be a life term ban on convicted parliamentarians and MLAs from contesting elections. What is wrong in doing this? Nothing wrong rather it is the crying need of the hour!

Simply put, the petition by Ashwini had also sought to declare Section 29A of the Representation of the People Act, 1951, “arbitrary, irrational and ultra vires the Constitution, and to authorize the Election Commission to register and deregister parties as suggested by the Goswami Committee on Electoral Reform.” The petitioner, however, withdrew this prayer. But I very strongly feel that Election Commission must be authorized to register and de-register parties if they don’t comply with rules and regulations!

Also, I very strongly feel that convicts must be completely barred from exercising any control of any kind on political parties! Only then can we hope of some real semblance of true democracy flourishing in our country! All said and done, what the CJI has said while heading a three-Judge Bench of the Supreme Court has a lot of merit in it and must be implemented by barring convicts and criminals from heading political parties or from influencing it in any manner! Only then can good people get a chance of heading political parties who are otherwise kept on the margins!

Read the ROP of the last hearing here:

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Sanjeev Sirohi is an Advocate from Meerut. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.

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