Who'll judge the judges?

It is a tragedy in Indian democracy that politicians of the day are shying away from transparency and do not want a clean public life. They are rather interested in a process that may rob the judiciary of its independence. The proposed National Judicial Appointment Commission Bill is an attempt to subjugate the judiciary through the appointment of judges. The bill proposes formation of a Commission to look into matters like appointment of judges, their transfer and charges of misconduct levelled against them. As proposed, the Commission will comprise the Union Law and Justice Minister, a representative of the Union executive, Leader of the Opposition, Chief Justice of India and two judges of the Supreme Court. The Commission will replace the collegium system of appointing judges, which has so far helped judiciary to be independent of executive control. 

The Collegium system suffers from some inherent problems. Also there are some reported cases of corruption in judiciary and inordinate delays in delivery of justice. But these can be rectified through a process of judicial reforms. There is no justification to bring judiciary under executive control. The collegium system of appointment of judges has proved the test of time and, therefore, needs to continue. Rather an advisory committee consisting of executives, lawyers, civil society, parliamentarians and other interested groups can be formed to advise the collegium. The advisory committee can also give its suggestion in the formation of the collegium. The appointment of judges should be entirely left to the judicial system. It is the judiciary, which has, at times, stepped in to rectify the ills in the executive and in the political system. Some have cried foul terming it as ‘judicial over-activism’. Well, the judiciary has a place in democracy and a sound, unbiased and independent judicial system is in the interests of democracy.

What has perplexed the politicians of the day are the three vital judgements of the Supreme Court- disallowing a person in jail from contesting elections and also unseating him or her from the Parliament or State Assembly, deacalring null and void a convicted person’s candidature and debarring him from contesting polls from Parliament or State Assembly and the directive to  Election Commission to frame guidelines in cases of politicians or political parties doling out “free deals” as a convenient way to mobilise public support. The apex court’s verdict, however, is not retrospective; it is for implementation for the coming polls. Also the Allahabad High Court’s judgement banning caste rallies for garnering support has invited fresh worries for political parties in Uttar Pradesh.

Criminalisation of politics is a dangerous trend in Indian democracy. A ten-year survey conducted by National Election Watch (NEW) and Association for Democratic Reforms (ADR) has revealed that since 2004 out of the total of 62,847 candidates who contested either parliamentary or state assembly elections, 11,063 had declared having criminal cases against them in their affidavits, of which 5,253 had serious criminal cases. Since 2004, out of the 8790 MPs and MLAs analysed, 2,575 or 29 per cent of them had declared criminal cases against them, of which 1,187 or 14 per cent had serious criminal charges.

The survey also found 30 per cent of sitting Lok Sabha MPs and 40 per cent of sitting Rajya Sabha MPs with declared criminal cases against them. This means 162 out of 543 Lok Sabha MPs and 40 out of 232 Rajya Sabha MPs have declared criminal cases against them. Political parties have been giving tickets to candidates despite knowing their criminal records. They have been given tickets in subsequent elections. The survey found cases against 788 contesting candidates have been pending since their declarations in the previous elections. For some the cases are pending since 10 years without resolution. This means that these candidates with pending criminal cases continue to contest elections and some of them continue as elected representatives.

Analysis of data has revealed that money power and muscle have a large bearing on the chances of winning elections. Since 2004, the average assets of 2575 MPs and MLAs with criminal cases is Rs 4.30 crore and for 1187 MPs and MLAs with serious criminal charges is Rs 4.38 crore. Of 4181 candidates who contested more than one election, 3173 showed an increase in wealth. The Central Information Commission (CIC) in its recent verdict has rightly defined political parties as public authorities and that they should come under the ambit of the Right to Information (RTI) Act. The political parties directly or indirectly steer the destiny of the country and every citizen has the right to know how and why decisions taken by each political party.

The CIC found that as political parties are substantially financed by the government in terms of allotment of land either free of cost or at concessional rates, accommodations at concessional rates, total tax exemption, free airtime in public broadcasting agencies they should be designated as public authorities. Besides as per constitutional and legal provisions political parties are required to registered with the Election Commission of India (ECI) who allots them symbols for contesting polls. The political parties are required to divulge information about donations of Rs 20,000 and above received from any source to the ECI. Then why should not an ordinary citizen have recourse to this information directly from political parties?

 It is unfortunate that instead of welcoming the CIC verdict which aims at bringing transparency in the Indian polity, all political parties without exception have been critical about this landmark verdict. However, no political party has ventured to go for an appeal against this verdict in any higher courts of law, lest they be identified as going against the move.  IPA