Millennium Post

‘Judiciary today needs to be even more proactive’

There have been a series of rulings by the Supreme Court in July to the chagrin of political leadership. While a determined attempt by the judiciary to cleanse politics has been welcomed by people, there are concerns as well. Like, the judgment can be used to foist false cases to disqualify strong electoral opponents. It also means doing another George Fernandes – he fought and won the polls from jail in July 1977 – is impossible.

Former law minister and eminent Supreme Court lawyer Shanti Bhushan tells why he chooses to be with the apex court decisions and why politics in India needs to come out of the personality cult. Bhushan had represented Raj Narain in a case against the then Prime Minister Indira Gandhi, who was eventually declared guilty and her election to Lok Sabha declared void. The decision had resulted in widespread political protests and ultimately led to the
declaration of emergency in India. Edited excerpts:
Shouldn’t MPs/MLAs be given a window for appeal – what if the higher court later declares them not guilty?
They should not be given any window for filing an appeal for the purpose of getting rid of the disqualification. It is more important that criminals don’t reach parliament than that a particular person is deprived of his legitimate right to contest an election. A person’s right to contest an election is not his right – he has no vested right. It is the right of the electors to choose a representative to represent them in parliament. Now if a person, unfortunately for some reason, is not available, what is the difficulty in the voters
selecting another person to
represent them?
 (For instance) if for some reason a lawyer is unwell, a litigant can select another lawyer. Or if a patient needs a doctor and for some reason that doctor is not available, he can choose another doctor.
So it must be recognised that elections are not to enforce the right of a person to become an MP – there is no such right – it is the right of the voters that their voice, their views should be heard in parliament through somebody, as all of them
cannot go to parliament. Therefore, when a person is chosen by the people, it is the right of the people, not the right of the candidate, which is being enforced in a democracy.
Unfortunately, today politicians consider that it is their vested right to be in parliament, and unless they are in parliament, their right is being denied. They must recognise that they are servants of the people; they are chosen as (people’s) representatives. Unfortunately all politicians have forgotten the purpose of democracy… That’s why I regard this as an excellent, path-breaking
judgment which will give a blow to criminalisation of politics.      
On 11 July, the SC ruled that only an elector can contest polls, i.e., those in jails cannot. Can political parties misuse this ruling to put tough rivals behind bars ahead of elections?

Two legitimate views are possible (on this) but I subscribe to the view that even this judgment is good. And it will do good to politics rather than bad. We have seen criminals contesting elections from jail. Now the point being raised by some people is that it can be misused by a political party just before the nominations. They may get some person they fear disqualified by getting them framed. I do not believe that is possible to any
significant extent because the courts are there.
If in a particular case an important candidate is sought to be illegally arrested on account of the pressure of the ruling party, then the courts will grant him relief and say that he should be released immediately so that he is able to fight the election. Apart from that, I do not think any ruling party can have clout to such an extent over the police… It is not so easy for any ruling party get innocent people implicated in totally false cases in a significant manner. Therefore, this (judgment) also will ultimately help and support democracy rather damage it.
Are the three SC rulings (or any specific ones among them) a case of judicial overreach? Is the SC getting into parliament’s territory of lawmaking instead of limiting itself to interpretation of law?
In the first case, they have struck down a provision: subsection 4 of section 8 (of RP Act). Nobody can dispute that if a particular provision of a law enacted by parliament goes against the constitution the courts not only have the right but have a duty to strike it down. They have done it. Where is the question of any overreach here? They have exercised their normal right to strike down some law enacted by parliament which they found was contrary to the constitution.
In the other case also they (SC) have interpreted the law. Two views may be possible about that interpretation but the point is in interpreting a law, the principle of purposive interpretation, which furthers the objectives of the constitution (and) of democracy, is preferable. What they have done is for being a candidate, you must be a voter. If you are not a voter, you cannot be a candidate. That’s provided in the law itself. Now the question is, when do you cease to be a voter? One view may be (that) merely by being in custody you don’t cease to be a voter. The other view which they (SC) have taken is that if by a lawful arrest he is not in a position to cast his vote, effectively he has ceased to be a voter. And if he has effectively ceased to cast his vote as a voter, why should he be permitted to contest an election?
That’s an argument I had advanced in 1975 when Indira Gandhi’s stay application was being heard in the Supreme Court. And the court finally said she could continue as prime minister but she would not exercise her right of vote. I had then said, ‘what kind of a prime minister she would be…a crippled PM, a PM who could not vote in the house.’
I had said, ‘In a country of 100 crore people, is one person so important that the country cannot find another person to be the PM?’ I had argued that this would be no ground to permit her (to continue as PM). A person against whom serious charges of electoral violation had been found by the high court and the court had gone to the extent of not only setting aside her election but disqualifying her from any election for six years, why should such a person be
permitted to continue as prime minister by an interim order?
Before that, whenever a chief minister’s election was set aside, he was asked to step down. It is like what Dev Kant Baruah had said, ‘Indira is India and India is Indira.’ In a democracy, personality cult should not be taken to an extent that some person is (deemed) indispensable. In a democracy, there are always alternatives available. So if a person cannot contest election because he has been arrested, what’s the problem? Somebody else will fight the election.             
Which of the three SC rulings is sustainable and which will be subverted by the political class, through parliament or otherwise?

Parliament will try to subvert the first ruling because in my opinion the supreme court had committed one error: they have given only prospective effect to their judgment. Normally the law is, if you strike down a provision as being contrary to the constitution, then it is done as if it was never there. So, all MPS whose appeals were pending would also have got disqualified. And all criminals who had been
convicted or sentenced, and were sitting in parliament, would have immediately had to go out.
But unfortunately the supreme court applied the principle of prospective ruling, which is a very exceptional doctrine to be applied in very special cases when some transactions have taken place on the basis of the old ruling, etc.
Even Soli Sorabjee has written that a particular part of the judgment is not correct. But still, because it will affect other MPs who might now get convicted, I think the political class will be very keen to have this judgment set aside by some legislative enactment, etc. But take it from me, it will not be easy. If they do it, the legislation itself might be set aside but the country must ask them why you are so keen that a particular candidate must
continue in parliament.
Are these rulings steps towards political reform? Does the judiciary have the power to force such reforms on legislature? If not, which institution is best placed to carry them out?

It is undoubtedly some kind of a reform. And it has been done only within very clearly defined confines of the powers of
judiciary. The judiciary today needs to be even more proactive. The judiciary is the custodian of the constitution (and the) constitution means democracy. It is the duty of judiciary to see to it that nothing is allowed to come in the way of true democracy. Therefore, they (judges) should exercise their powers more
confidently, more proactively and they’ll win the hearts of the people in future. The ultimate test is, is it for the good of the people or not?
Political reforms and judicial reforms: which take the priority?
Both are equally important. Of course, so far as people are concerned, political reforms take a precedent. Because in the
judiciary, even if there are defects, and particularly in the supreme court, we have some of the best judges. All of them may not be of that order but many judges are of top order. In their thinking, their ability, their heart is in the right place…they are carrying the judiciary on their shoulders.
Unfortunately, there are some black sheep also. In fact, I had submitted a signed affidavit in a sealed cover in supreme court more than three years ago,
saying that at that time, of the last 16 chief justices of India, eight had been definitely corrupt, six had been definitely honest and two were doubtful. If I were to revive that list, because three more chief justices have retired since then, I’d say that out of the last 19 chief justices of India, 10 were definitely corrupt, seven were definitely honest and two were doubtful.
What is civil society’s role in this SC-dictated clean-up of politics?
The role of civil society is to create massive public opinion because, fortunately, public opinion in a country cannot be completely disregarded. Although if the political class, or a particular political party, finds that its interests might be highly jeopardised, it may even disregard that massive public opinion, as happened two years back. When a joint drafting committee was constituted on the Lokpal bill, I had said if the Congress had enacted the Lokpal bill substantially on the lines that we had drafted it, the party would have won the 2014
elections hands down.
But if they had enacted the bill, half of their cabinet ministers would have been in jail. That was their dilemma; that’s why they are trying so hard to have the CBI under their control. I believe the prime minister is personally honest. But it is not enough to be personally honest. If you know that your ministers are indulging in corruption then as PM you are abetting that corruption. You are equally guilty – under law, you are equally liable to go to jail.
On arrangement with Governance Now
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