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 Fundamental Rights

Mainstream, VOL LI, No 38, September 7, 2013

SC Rulings and Citizens’
 Fundamental Rights

Sunday 8 September 2013, by Barun Das Gupta


Recently, the Supreme Court has given two rulings—one denying the right of a person to continue as an MP, MLA or MLC once he has been convicted in a criminal case, and the other denying the right of a person in police or judicial custody to stand for election and even to exercise his franchise in an election. The Supreme Court’s intention is very clear and laudable, namely, to decriminalise politics by preventing anyone who has a criminal conviction or a criminal case pending against him from entering the arena of electoral politics. There is no doubt that many criminals have taken part in and won elections and become elected Members of Parliament or a Legislature. Some of them have been made Ministers also. Naturally the two rulings of the Apex Court have naturally been welcomed by a cross-section of the people.

While there can be no two opinions that law-breakers cannot be allowed to be our law-makers, there is a glitch. After the Constitution came into force in 1950 and elections for Parliament and the State Legislatures began to be held every five years, certain negative political cultures and practices have grown in our polity which are not known in other democratic countries of the West. Nowhere else in the world is there a practice of framing a political leader of a rival party in a false criminal case. But instances of such framing are galore in our country. Usually the ruling party or parties resort to such tactics because they control the police and nothing is easier for them than to ask the police to file a criminal case against an ‘inconvenient’ political rival and charge-sheet him under non-cognisable and non-bailable sections of the Indian Penal Code.

Our justice delivery system is such that not to speak of civil cases, trial in even criminal cases take years, sometimes even decades, to be completed. Till the disposal of the case the accused will have to languish in jail – unless he is a heavyweight political ‘somebody’. After many years, he may be found innocent of the charge and acquitted but the invaluable years of life that he had spent in jail he will never get back.

Our criminal justice system is based on the principle that a person has to be presumed innocent until proven guilty. The onus of proving the guilt of the accused lies on the prosecution (usually the State). In some countries it is just the other way round: it is the accused who has to prove his innocence. The two recent rulings of the Supreme Court will now debar a person from contesting an election even if he is facing a criminal charge and is in police or judicial custody. The Supreme Court rulings also do not clarify whether a person who may have been convicted in a criminal case, has served the full term of his sentence and been released, will
be able to stand for elections and cast his vote, or be deprived of that right for the rest of his life.

This is not an academic question of law and the Constitution but a question of great practical relevance. Two instances will make my point clear.

First, George Fernandes, the eminent Socialist and trade union leader, was framed in the patently false ‘Baroda dynamite case’ during the notorious Internal Emergency that was proclaimed in June 1975 and which ended only after the defeat of Indira Gandhi and the Congress party in the February 1977 general elections. George contested the election from jail, won with a huge margin and became a Minister in the Janata Party Government headed by Morarji Desai. The false case was withdrawn by the new government that came to power. If the present Supreme Court rulings were in force at that time, George could not have contested the elections at all. The right to contest an election from behind the prison bars was not taken away even by Indira Gandhi during the Emergency. But the Supreme Court ruling does just that.

Second, Pannalal Das Gupta, the RCPI leader who became a legend in his lifetime, was convicted in the armed uprising case, popularly known as the ‘Dum Dum-Basirhat Raid Case’ in 1949. He was accused of ‘waging war against the State’, found guilty, convicted and sentenced to life imprisonment. In 1962, he was released by West Bengal Chief Minister Prafulla Sen, who had succeeded Dr B. C. Roy. On his release, Pannalal Babu devoted himself entirely to rural development, was elected to the West Bengal Assembly as a Left Front-supported Independent and was eventually made a member of the State Planning Board.

George Fernandes or Pannalal Das Gupta were not criminals or anti-social elements. They believed in a cause and fought for it. I have named them because they are widely known. But there were many Communist and Left leaders who had spend long months behind the prison bars as political prisoners or under-trial prisoners or detinues. Today, after the Supreme Court ruling, people like them would not be able to take part in the electoral process, either as a candidate or as a voter.

The Supreme Court rulings, their good intentions notwithstanding, raise the question: can free India deprive a citizen of the right to vote and stand for an election because of the misdeeds of a handful of criminals ? Will it not abridge the democratic rights conferred by the Constitution ? There should be a nation-wide debate on the implications of the Suprme Court rulings as far as they relate to the abridgement of the fundamental rights of the citizenry.

Barun Das Gupta
Sector III,
Salt Lake,

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