Why Central Govt Not Enacted Law To Prohibit Candidates With Criminal Backgrounds From Contesting Elections As Observed By SC?: Asks Madras HC

It is most refreshing, most reassuring and most remarkable that the Madras High Court has just recently on 13 August 2020 in a well-reasoned, well-articulated, well-worded, well-analyzed and well-balanced judgment titled Jamuna Vs 1. The Secretary to Government, Government of India, 2. The Lieutenant Governor, Puducherry, 3. The District Magistrate-cum-Authorised Officer, Puducherry in H.C.P. No. 90 of 2020 has very rightly demanded from the Centre as to why it does not enact a law to prohibit candidates with criminal background from contesting elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court on September 25, 2018 in Public Interest Foundation v. Union of India? The Madras High Court also noted alarmingly that persons with criminal background are becoming policy makers in many parts of the country. Time and again eminent persons have raised their extreme concern on this but Centre from 1947 till now in 2020 has shamelessly turned a deaf ear to it just like it has done in the case of setting up of more benches in big states like UP which has just one high court bench set up in 1948 in Lucknow that is just 200 km away from Allahabad where high court is located leaving the rest of UP especially West UP high and dry. People are compelled to travel whole night to Allahabad shamelessly by our shameless lawmakers who have decided just not to listen to even the recommendations of Justice Jaswant Singh Commission which recommended 3 benches for undivided UP in late 1970s at Agra, Dehradun and Nainital by not approving even a single even while approving benches for other smaller states like Aurangabad in Mahrashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal nor to the 230th report of Law Commission of India which recommended setting up of more high court benches! Should we be all as good citizens of our country feel really very proud of this?

Bluntly put: Why for getting a government job even as small as a police constable, we see that there is a proper police verification and even if one false case is registered, the candidate is promptly barred from getting any government job? Why if that very same candidate commits thousands of crimes like rape, murder, gangrape, dacoity, robbery etc in different cases, still he/she would be eligible to fight in elections for becoming an MP or an MLA even from jails on the pretext that the case is “politically motivated” or it is still pending in one court or the other which is yet to be decided? Not just this there is no need to have any educational qualification to become and MP or an MLA! Can there be a bigger mockery of our democratic system and of Article 14 which talks about equality in our Constitution? Even God cannot help the country where criminals themselves become law makers!

To start with, this latest, landmark and laudable judgment authored by Justice N Kirubakaran for himself and Justice Ms. VM Velumani of Madras High Court sets the ball rolling by first and foremost pointing out in para 2 after noting in para 1 that  the matter was heard through “Video Conference” that, “This Petition has been filed by the Wife of the Detenu against the detention order passed against her husband on 05.11.2019 in No.7/DM/RO/D2/PPASAA/2019 as he has got about 19 cases pending registered against him for various offences. Out of the 19 cases, one case was registered for the Offence under Section 302 of Indian Penal Code, one case was registered for the Offence under Section 307 of Indian Penal Code, three cases for the offence of dacoity and one case registered under NDPS Act and so on. Taking note of the above facts, this Court questioned the respondent as to why investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed, by Order dated 29.07.2020, to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.”

Going ahead, it is then disclosed in para 3 that, “Counter affidavit and a report has been filed on behalf of respondents 2 & 3 giving the details of the stages of the cases pending against the detenu. Out of the 19 cases, in one case alone in S.C. No. 43 of 2016, the detenu has been acquitted and the other cases are pending.”

Alarmingly, it is then disclosed in para 4 that, “It is evident from media reports that criminal elements in Puducherry have close connection and support of political parties. Political parties are having criminals as their members and also office bearers. It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country made bombs are used to murder the opposite gang members. Totally in 5 cases, country made bombs were hurled by the detenu and his associates. Only in two cases, charge sheets have been filed in Crime No. 95/2015 dated 15.06.2015 on the file of Odiansulai Police Station and in Crime No. 98/2019 on the file of Thirubuvanai Police Station in which offences under the Explosives Substances Act, 1908 have been invoked. So far, no charge sheet has been filed in Crime No. 98/2019 wherein double barrel country made gun was used. The detenu and his associates are said to have used country made bombs for murdering one Velazhagan S/o Iyyavu on 19.04.2017 and a case has been registered in Crime No. 40 of 2017 under Section 302 of Indian Penal Code and 3 of Explosive Substances Act, 1908 and thereafter, the case was transferred to CBCID, Puducherry. Though the case has been registered in the year 2017, the sanction for prosecution under Explosives Substances Act has not been granted by the Government. Only after this Court questioned the attitude of the Respondents by virtue of the order dated 29.07.2020, sanction has been granted last week and chargesheet has also been filed in the said case, Mr. Bharatha Chakravarthy, learned Public Prosecutor would submit. This Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused. In 2015 case, not even investigation is over for the past 5 years. This would speak about his clout with political parties, especially ruling parties and Police. But for political interference, Police would have filed charge sheets.”

More alarmingly, it is then also conceded in para 5 that, “This would only go to show the lethargic attitude of the police even in the cases involving heinous criminals that too murders by using country made bombs. Many murders are committed cruelly by throwing country made bombs. In three cases registered against the detenu, the detenu and other accused had used country made bombs for committing murders. In 2018, Former Speaker of Puducherry, Sivakumar was murdered by a gang in the same fashion, by hurling country bombs. It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.”

Furthermore, it is then brought out in para 6 that, “It is submitted by Mr. Bharathy Chakravarthy that in most of the cases, accused would be more than ten persons and they will not co-operate with trial and cases are pending because of the Non-Bailable Warrant issued against the accused. Since the cases are pending for a long time, the Courts are compelled to split up the matters and thereafter, conduct trials. This has to be taken into consideration by the lower Courts while granting bail, as the accused violate the bail conditions.”

Honestly speaking, it is then candidly conceded in para 7 that, “It is appearing in the Media that rowdy gangs are operated by many politicians, communal and religious leaders throughout the Country. There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.”

How can all this be allowed to go on with impunity? But Centre has allowed this to happen right under its nose and even Supreme Court has been a silent spectator to it! This is exactly what is damaging most our image of being a truly democratic country!

While giving a piece of sensible advice to our political parties, the Bench then observes in para 8 that, “Further, it is reported that persons with criminal background are becoming policy makers in many parts of the country and the same has to be prevented and the system has to be cleansed. This is possible, only if the top leaders of our political parties are firm in not admitting the criminals in their political parties. The leaders should have a vision for decriminalization of politics. If criminals are accommodated in political parties and given tickets to contest elections and elected as M.L.A.s, M.P.s, and made as Ministers, wrong message would be sent to the people.”

With due respect to Madras High Court, it must be pointed out here that it is an unpalatable truth that criminals facing serious criminal charges like rape, murder, dacoity are becoming MLAs, MPs and Ministers because our judiciary has given them the long rope even while simultaneously ensuring that for small jobs there is so much strict checking that even one case filed wrongly by someone in enmity can end the chances of getting a small government job! Wrong message is being sent to the people since 1947 yet no law made till 2020 to bar criminals from contesting elections! Here lies the real rub!

Needless to say, the Bench then very correctly and commendably points out in para 9 that, “Persons with criminal background should not become policy makers. Association for Democratic Reforms (ADR) released a report “Lok Sabha Elections 2019 – Analysis of Background, Financial, Education, Gender and other details of the winners” and it revealed that 43% (233 out of 539) elected MPs have serious criminal cases pending against them. Therefore, the Central Government has to come out with a comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State Legislatures and local bodies as observed by the Constitution Bench of Hon’ble Supreme Court in Public Interest Foundation and others vs. Union of India and another on 25th September 2018. Para 119 of the above Judgment is extracted as follows:-

“119. We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Indian Democracy should not be tainted by criminals. Further, it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

Finally and far most significantly, it is then held in para 10 that, “In view of the above, this Court, Suo Motu, impleads, “The Director General of Police, Puducherry”, as party respondents to the proceedings and Mr. Bharatha Chakravarthy, learned Public Prosecutor (Puducherry) takes notice on behalf of the newly impleaded 4th respondent, Mr. G. Kathikeyan, learned Assistant Solicitor General, assisted by Mr. S.S. Pajaniradja, Central Government Standing Counsel appearing on behalf of the first respondent shall answer the following queries:

(i)                         How many rowdy gangs are active in Puducherry as well as in other States?

(ii)                      How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?

(iii)                    How many History sheets have been opened for the past ten years in Puducherry?

(iv)                   How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?

(v)                      How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?

(vi)                   Whether witnesses in the said cases are threatened to turn hostile so as to get acquittal in Puducherry?

(vii)                How many years it takes for a criminal case, especially a murder case to get disposed of in Puducherry?

(viii)             How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry? (Each year detail to be given)

(ix)                   Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?

(x)                      If so, in how many cases, the illegal weapons have been used?

(xi)                   Why not the Central Government enact a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Hon’ble Supreme Court on 25.09.2018 in Public Interest Foundation and others vs. Union of India and another reported in 2019 (3) SCC 224?

(xii)                Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

In essence, it would be perfectly in order for Centre to pause, ponder and plan on the volley of queries that have been posed in this noteworthy case by the Madras High Court and answer them to the fullest satisfaction of the court which has posted the matter to be listed after two weeks! Just strong political will is needed to do this to ban criminals from entering politics and if Centre is able to do this, it will only enhance its own credibility in the eyes of not only the courts but also the common man! The earlier this is done, the better it shall be for our national interests!

No doubt, if criminals are barred permanently from anyhow entering politics then our democratic system will slowly start coming back to shape which is the crying need of the hour also! Why can’t this present dispensation led by PM Narendra Damodardas Modi do within its own territory when it can carry out surgical strikes deep inside the territory of a hostile country like Pakistan and also suitably amend Article 370 of the Constitution and repeal Article 35A much to the chagrin of China and Pakistan?

 

Sanjeev Sirohi

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