The multiple loopholes in the Indian judicial system, coupled with centuries-old laws, have benefited the ‘powerful’ politicians immensely. Those facing corruption charges, or even those with criminal antecedents, are able to hoodwink the legal system and continue to rule the roost. They have done so now for years…some, for decades. It took almost 18 years to convict J Jayalalitha in a disproportionate assets case, while almost 17 years passed before Lalu Prasad Yadav was made accountable for the 'chara ghotala'. Across the country, including Haryana, there are several politicians against whom cases of corruption, crime, rape and other heinous charges have been framed. In a majority of the cases involving these politicians, the topmost lawyers are hired. This ensures that all legal ‘loopholes’ are taken advantage of, while the politicians work on exerting pressure on the investigating agencies to get the cases dropped or delayed. They are not above influencing even the judiciary – allegedly right to the top. Within legal circles there is even talk of a 'cosy' relationship between top lawyers and the judiciary. Two cases that could have made a great impact on the politics and governance of Haryana involve, first, the five MLAs of the Haryana Janhit Congress (HJC), who had switched sides to the Congress in 2009 - ensuring that the Congress could form a government led by Bhupinder Singh Hooda. The shift in loyalty by the MLAs led to a prolonged legal battle against the Congress by Kuldip Bishnoi, the leader of HJC. However, five years, the full tenure of the ruling Party, have passed, and the matter is still to be decided by the High Court! It amounts to a mockery not just of justice, but also the election process. Now, whether the Court upholds the switch or declares it illegal, there is little relevance left. Even if the Congress is found guilty, can all decisions of the ruling Party really be overturned? The second case, equally serious, and seemingly unrelated, involves the Gurgaon MLA and a Minister (sports) in the Hooda cabinet, Sukhbir Kataria. This case is not really unrelated, because it also pertains to the 2009 Assembly elections, and Kataria, though having fought the polls as an Independent, went on to support the Congress. Multiple FIRs have been slapped against him, for facilitating ‘bogus’ voting by the use of ‘fake’ voter ID cards, to ensure his victory. Cases have been framed against Kataria under the sections of cheating, preparing and using fake documents and criminal conspiracy. While these cases have been filed against Kataria since 2009, it was only in the 2013, when the complainant Matdata Jagrookta Manch approached the Gurgaon court, that the first FIR was registered against the Minister. And despite the registration of many cases thereafter, there has been little progress, because the investigating agency, which is under the government, has failed to file a chargesheet, which would have made it possible for action to be taken against the Minister. OP Kataria, who has been spearheading the case against the Gurgaon MLA, had to recently approach the Punjab and Haryana High Court, arguing for action to be taken against senior police officials, for their ‘deliberately’ delaying the case. Though the High Court has reserved its order in this case, petitioner Kataria tells Friday Gurgaon that there will certainly be more pressure now on the police to act against those who violated all rules in the 2009 elections. "I am assured that more cases are likely to be registered for ‘bogus’ voting, and this case will also reach a conclusion soon," asserts Kataria. Till last count almost 32,000 ‘bogus’ votes have been cancelled and removed from the voter list by the Gurgaon administration. Kataria says that the filing of further FIRs (8 already filed) will send a strong message that such practices would result in strong legal action. While he is upbeat about the future of the case, the RTI activist admits that the fight against influential and powerful politicians in the country is very difficult, and till someone is in power it is very difficult to oppose him – because the system is primed to help the very people who are subverting it! The main problem in bringing the wrongdoers to book is that the police and administration, combined with an archaic judicial system, come together to ensure that someone with power and resources is able to keep the long arms of the law waiting - till the time that the case almost becomes farcical for the petitioner. Kataria says that in this case he filed almost 153 ‘bogus’ vote complaints against the Gurgaon MLA. “The first complaint was filed prior to the 2009 elections, and this process continued, as we found that multiple voters had been registered from houses where no one lived - and even empty plots were registered as addresses. Complaints were made to the Chief Election Commissioner of India, and several otherauthorities, but no action was taken. We filed complaints with the police, and other officials. To check the action taken on these complaints, we filed RTIs, which revealed that a ‘fake’ legal precedent had been cited by a senior police official, to justify that no action could be taken on our complaints," says Kataria. It was this indecision by the administration that forced him to approach the Gurgaon Court, to file a case against ‘bogus’ voters. Consistent follow up on the case led to the filing of multiple FIRs against Sports Minister Kataria. However, despite so many FIRs, the investigation has been slow – ostensibly under influence from the political higher ups. The idea was presumably to delay the case till the Assembly elections, after which it would cease to be meaningful. An allegedly criminal offence, impacting the very core and integrity of our electoral system, has been allowed to just drift…for almost 5 years! Advocate Haridutt Sharma says that unless the Law Commission recommendations on checking the criminalisation in politics are implemented across the country, such cases are going to continue, as the politicians have the power and pelf to influence the executive, and to hire top lawyers to ensure that cases are forever delayed. "The present judicial system provides so many loopholes; unless major changes are made this abuse, and the evasion of law, will continue," says Sharma. Some legal luminaries are of the view that the delays in courts are due to the elaborate process for the production of evidence. Hemant Sharma, a Gurgaon-based lawyer, opines, "In a number of complaints in the ‘bogus’ voting case in Gurgaon, notices have been issued to those involved; however, those persons have also filed counter claims, which will now be scrutinised by the court. This process will continue till the evidence process is complete.” He also feels that many cases in Indian courts take more time because there is a huge pendency of cases, and the number of judges is quite less. Advocates agree opine that the police and administration also function as adjuncts of the political leadership, and these institutions feel no obligation to act independently – as a result of which little can happen in this country without a nod from the powers that be. What complicates the situation is that it is equally easy to trap a person in a legal case if the State so wants! It was also for this reason that Kuldip Bishnoi's battle to ensure the disqualification his renegade MLAs could not fructify, as the case was tossed between the Speaker of the Assembly (who had initially ruled that the switch was ok), the High Court and the Supreme Court. Now, after 5 years, the decision is still pending before the Punjab and Haryana High Court. Constitutional experts say that the decision in the case could have some retrospective impact. If the switch/merger is declared illegal, then these MLAs will lose their pensionary and legal benefits - but there would be no retrospective impact on the decision taken by the State.
Sumit Kumar, Advocate on Record in the Supreme Court, is of the opinion that it depends upon the reigning Chief Justice of India (CJI) to give a direction to the political cases depending on the seriousness of the issues involved. "The reason for delays is that the judicial infrastructure is quite inadequate, and there is need to fill the large number of judge posts that are lying vacant," says Kumar. In his opinion, the political cases that are deemed serious can be tried in Fast Track Courts and Special Courts, where the hearings take place on a day to day basis, and there are few options of getting adjournments. "I think there is also need to simplify the rules and regulations, and make these contemporary, to ensure that justice can be delivered in a timely manner", says Sharma. Association of Democratic Reforms (ADR), an NGO involved in electoral issues, states that the problem of delays in the judicial system in India has been extensively studied and discussed from a number of perspectives. ADR opines that the delays in the trials of politically influential persons like MPs and MLAs pose a different set of challenges. In such cases, there is a high probability that the accused would be able to compromise the trial process, distort evidence and delay the proceedings. Delays are also caused by these influential persons resorting to prolonged absence from court proceedings, and the police not willing to enforce their presence. The Supreme Court has also remarked in a case that ‘the slow motion becomes much slower motion when politically powerful or high and influential persons figure as accused’. Due to such tactics, delays have become directly related to low rates of convictions in the country. Lawyers and activists agree that the current rules that decide on the disqualification of candidates upon their conviction, are incapable of ensuring that criminals are kept away from politics. They have hailed the Law Commission’s recommendation that a candidate should be disqualified if charges have been framed for offences that are punishable by five years or more prison terms (just the registration of an FIR under Section 173 is not adequate for disqualifying a candidate, as sufficient application of judicial mind has not happened at this stage). The Law Commission Panel's report on 'Electoral Disqualifications' also recommends that the filing of a false affidavit by a candidate should be treated as a serious offence (inviting a two year prison term) under the Representation of the People Act and invite disqualification. The Report, which was tabled in Parliament, was submitted to the Supreme Court in March this year. Disqualification of a candidate upon conviction has currently proved to be untenable, as there are long delays in trials, and convictions are rare. Another safeguard which has been included is that charges filed upto one year before the date of scrutiny of the nomination papers for an election would not be considered for disqualification of a candidate. An important recommendation made by the law panel is that if cases have been framed against a sitting MP or MLA, then the trial must be expedited and concluded within a one-year period. And if a trial is not completed in this time, then the concerned MLA/MP should either be disqualified or his/her right to vote in the House as a member, and remuneration, shall be suspended. Advocate Vidya Raja says that a major overhaul of not only the judicial, but also the executive and legislature, is required, to ensure that corrupt, criminal and anti-social elements are not able to remain in the system. The common man suffers the most in such a skewed set up. The need of the hour is for the law to mature and evolve, to stop criminals from hijacking power in the garb of politicians and thus subverting the very ethos of democracy. Though there is despair among the activists and volunteers who are fighting to cleanse the political system, using PILs and RTIs, the Prime Minister’s promise that he would clean the political system of criminal and corrupt elements, has given many a semblance of hope. PM Modi’s promises and clarion calls for good governance have to soon trickle down to the roots - as they matter the most here. Most importantly, democracy (and the electoral system is at its core) should not be allowed to be subverted in any form, any longer.
Read More...