States Anurag Thakur “Who is the Ghaddar feeling Hurt?”

By Amba Charan Vashishth

The decision of the Election Commission (EC) of India to ban the Union Minister of State for Finance Anurag Thakur and BJP MP Parvesh Verma from campaigning for the current elections to Delhi Vidhan Sabha for 3 and 4 days, respectively, saying that it was not satisfied with the reply given by the two leaders. The EC further said that its earlier order to remove the two leaders from the list of star campaigners would also continue.

EC direction may be heartening to some sections of political parties but it does not stand the test of being rational. It has handed out two punishments for the same ‘offence’  of having made one single statement.

Further, EC issued the January 30 order finding having  been “not satisfied with their reply”. But the first order directing their party to remove their names from the list of “star campaigners” was issued in post haste and was arbitrary because it was done without seeking an explanation from the two leaders before issuing the first order.

“Goli maaro ghaddaaron ko” (kill the traitors) is a very common phrase in our day-today life and society. “Main tumhen goli maar doonga” is a phrase used even within a family when a child or wife/husband is going to commit something wrong which is not in tune with the family and society’s traditions. In cases where girls and infants have been murdered after rape, the victims and their families have always been demanding (goli maar do un gunahgaaron ko” (kill the guilty). In the notorious Nirbhaya rape and murder case, her mother has been running from pillar to post to get her daughter’s killers hanged at the earliest. Is it a crime?

In the instant case, Thakur demanded and Verma supported:”Goli maaro ghaddaron ko”. They have just demanded the killing of the traitors; they have not identified or named who are the traitors. Does the EC and the people feel that it is against law or Model Code of Conduct to demand traitors to be hanged? Identifying traitors is the function of the investigating agency and judiciary to punish the ‘traitor’.

To quote just a few cases, Maqbool Butt in J&K, Afzal Guru accused in the 2001 Parliament case, 26/11 Pakistani terrorist Ajmal Kasab, were tried and ordered to be hanged by the highest court of the country and not by the common man in the street.  It is a different matter that the common man did demand these traitors to be killed (goli maaro).  The common man is not guilty of any crime in demanding it.

A boy abducted an infant from his neighbourhood in Shimla for the purpose of ransom more than two years back. When failed, the boy killed the infant and dumped his body in a water storage tank. After a few months, the guilty boy was named and arrested. His mother was so dejected that before the Press she said: I will shoot him myself on the Mall road. Did she commit a crime by saying so?

The then Congress President while campaigning in 2019 elections to Parliament openly alleged repeatedly in a number of electoral rallies that “chaukidar chor hai” obviously meaning PM Narendra Modi who had been claiming to be a chaukidar of the nation. But, surprisingly, EC did neither take note of it and neither acted on it. Why?

Our law says that murder/rape/treason is a heinous crime and if anybody does commit such a crime he stands to be hanged or given some other punishment. Recently, a new law has been passed providing for a very high punishment or fine for breaking traffic laws. Doies our law threaten people? Our law does threaten the law-breaker but not the innocent law-abider. And so does the EC or the election law. If one is not a traitor, why should one lose one’s sleep?

There is another side of the story. The CBI has come out with a charge-sheet against former JNUSU president Kanhaiyya Kumar. But the AAP Delhi government is sitting over the matter of sanctioning his prosecution for the last about two years. A Delhi court also regretted this fact. The Delhi government should have taken a decision on merit by either sanctioning his prosecution or refusing it one way or the other. It should not have sat over the file for so long.  AAP CM knew that granting sanction or denying it will cost it losing electoral gain from one section of the people. It is a travesty of facts that this very government had been criticizing the Lt. Governor for sitting over some of its files.

In its anxiety to look impartial, EC itself has raised a question on its own image.  The EC should not only be fair and impartial, but should also appear to be so.

Author : Amba Charan Vashishtha

 

SC terms criminalisation of politics as ‘rot’, says may ask EC to deal with it

Dubbing criminalisation of politics as “rot”, the Supreme Court today said it may consider directing the Election Commission to ask political parties to get their members disclose criminal cases against them so that the electors know how many “alleged crooks” are there in such parties. 

The observation by a five-judge constitution bench headed by Chief Justice Dipak Misra came when it was told by the Centre that considering the concept of separation of powers, the issue of disqualification of lawmakers fell under the domain of Parliament.

“Everybody understands that (doctrine of separation of powers among Executive, Legislature and Judiciary). We cannot direct Parliament to make a law. The question is what can we do to contain the rot,” the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

While hearing PILs seeking to bar persons facing serious criminal charges from electoral politics, the bench took note of the suggestion of senior advocate Krishnan Venugopal, representing lawyer and BJP leader Ashwini Upadhyay who has filed one of the PILs, that the court may ask the poll panel to direct political parties not to give tickets to or take support from independent candidates facing serious criminal charges.

“Criminalisation of politics is antithesis to democracy,” the bench said, adding, “We can always direct the Election Commission to ask political parties to get members and to be members to declare on affidavit if there is any criminal case pending against them and such affidavits should be made public so that voters know as to how many alleged crooks are there in a political party”.

Referring to the “symbols order” and said if a party gave ticket to a person facing criminal or any other case, then the election symbol of that party would be de-recognised, the court said it was seeking upholding of “democratic ideals” and not “legislating” on the issue.

“Nobody is disqualifying anybody. What we may direct the Election Commission is that the election symbol of a political party be taken away if a person, facing criminal charges, is allowed to contest the election on its ticket,” it said.

The bench also said it has to “completely steer clear” of the aspect of disqualification of a lawmaker as it did not fall under its the domain. 

Senior advocate Dinesh Dwivedi, appearing for petitioner NGO ‘Public Interest Foundation’, exhorted the court to venture into the area of barring a person or a lawmaker from entering into electoral politics after the framing charges against them in criminal cases.

He referred to a report of the Law Commission and said it was an “eye opener” document prepared at the instance of the apex court. 

The report says that persons, having criminal records, have better chances of winning elections and the court should issue directions as the law is silent on the disqualification of such members or candidates, as was done in the case of Visakha when guidelines were laid on the issue sexual harassment at work place.

“The law is not silent, this is the whole point. The law provides for disqualification very clearly after a lawmaker is convicted,” the bench said.

“The law is silent as it provides for disqualification at the stage of conviction only. If a person is charge-sheeted or the court has framed the charges in the case then there was no provision of disqualification. The court can pass the directions in this regard,” Dwivedi argued.

The bench also said the Visakha and the anti-ragging guidelines were issued by the court as they related with violation of fundamental rights but this was not the case here. 

“Your argument can be encapsulated in one sentence that since you cannot issue mandamus (judicial writ issued as a command) to Parliament, then issue the writ to the election commission,” the bench said.

Senior advocate Krishnan Venugopal, who is fighting the case against his father and Attorney General K K Venugopal, suggested that to deal with the issue, either a law may be passed or the court can direct the poll panel to ask political parties not to give tickets to persons with criminal records.

He also suggested that the fixed election symbol of a national or state level recognised political parties may be cancelled if they gave tickets to such candidates.

Venugopal also said that the EC can ask the political parties to insert by-laws in their constitutions that they will not allow persons, who are facing trial in cases where minimum sentence prescribed is five years jail term, to fight elections on their tickets. It would serve the “larger good of the society”, he added.

At the fag end of the hearing, Attorney General K K Venugopal vehemently opposed the submissions of his son Krishnan Venugopal and Dinesh Dwivedi, saying they were trying to achieve a “particular result indirectly” which they cannot achieve “directly”.

“The question is whether it is the matter to be dealt by the legislature or it can be dealt by the judiciary… can the five judges sitting in the constitution bench decide the disqualification,” the top law officer said.

The bench countered him saying it understood the concept of separation of powers and cannot direct Parliament to make a law, but the “question is what can we do to contain the rot”.

The advancing of arguments would resume on August 28.