BJP leader and its former spokesperson, Ashwini Upadhyay was granted bail by a Delhi Court on a personal bond of Rs 50,000 in connection with the communal sloganeering near Jantar Mantar. He spent two days in judicial custody. He is the same Advocate Ashwini Upadhyay who filed a PIL seeking quick disposal of cases against MPs and MLAs and which will be soon heard by a bench of Chief Justice N V Ramana and Justices DY Chandrachud and Surya Kant.
In November 2017, the Supreme Court of India had ordered the setting up of special courts in each state to try pending criminal and other cases against our politicians. Accordingly, 12 such special courts were established across the country to expedite the pending cases against lawmakers. However, with the pending cases remaining high because of a slow disposal rate, the Supreme Court continues to track progress and issue the necessary guidelines periodically.
High Court Chief Justices have also been told to constitute a Special Bench to monitor progress. Around the same time, the apex court also appointed Senior Advocate Vijay Hansaria as Amicus Curiae in the matter who recently submitted his 14th report on the issue. The report immediately made headlines as it was reported that there are over 3000 cases pending against MPs, MLAs in 19 states and Union Territories. What are the reasons for such a high number of cases and why are they pending for so long? What are the implications and the relevance of this issue in the context of justice and fair play?
CRIME AND POLITICS
Filmmakers often say that the ‘reel’ life they create is merely a reflection of ‘real’ life. The politician as a criminal and the main villain in films is something that is routine and completely normalised. It is undeniable that many politicians have a tainted record in public life and have had some brush with the law when it comes to petty crime, corruption or issues related to violence and extortion.
It was quite shocking to know through a news story in the Indian Express (dated 15 July, 2021) which, quoting a report by poll rights group Association for Democratic Reforms (ADR), pointed out that 33 ministers (42%) of the 78 in the Council of Ministers of the current NDA government have criminal cases against them. Of these, 24 are related to serious crimes like murder, attempt to murder and robbery.
Now the report by the Amicus Curiae has led bare this nexus; it raises some very uncomfortable questions about the level of maturity of our democracy and how we as a nation can tolerate and keep re-electing a political class that is dipped in crime and nepotism.
Some of the data that Amicus Curiae Hansaria’s report has revealed is as follows: there are at least 3,211 cases pending against sitting and former members of the legislative assemblies and Parliament. Many of the cases pertain to serious offences. 121 cases are pending trial before various CBI courts. Of these, 58 cases pertain to crimes, which are punishable with life imprisonment. One case was punishable by death penalty. In 45 cases, the charges are yet to be framed. There were 51 MPs and 112 MLAs involved in these 121 cases. Among the MPs, 5 had died, 37 had served their terms and 14 were sitting Parliamentarians.
Among the MLAs, 9 had died, 78 had served their terms and 34 were sitting MLAs. There are 37 cases pending investigation before various CBI courts. Following information pertains to cases under the Enforcement Directorate (ED). 51 MPs both sitting and former along with 71 MLAs were under accused under the PMLA (Prevention of Money Laundering Act, 2002). The status of cases pending under the NIA (National Investigation Agency) has not been stated in the report by Hansaria.
THE ISSUE OF WITHDRAWAL OF CASES
One sinister dimension of the problem as pointed out in the report was regarding the withdrawal of cases against lawmakers. Although this is legally permissible as per Section 321 of the CrPC that states, “The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried”.
The UP government informed the Amicus Curiae that it had withdrawn 77 of the 510 cases pertaining to the communal violence of Muzaffarnagar in 2013. Hansaria lamented in his report: “The Government (of Uttar Pradesh) orders do not give any reasons for withdrawal of the case under Section 321 of Cr.P.C, it merely states that the administration after full consideration has taken a decision to withdraw the particular case. Many of such cases relate to offences of dacoity under Section 397 I.P.C. punishable with imprisonment for life.” We must understand what is happening here. It is the wholesale legal whitewashing of alleged crimes against humanity committed in the most heinous manner with the most diabolical of intentions.
This appears to be an extension of something that started with the installation of a new CM in Uttar Pradesh as can be seen in the following news story – “Yogi govt issues order to scrap case against Yogi Adityanath” (Indian Express, Manish Sahu dated December 27, 2017). Justifiably concerned over this surreptitious ploy, CJI NV Ramana said: “We are not against withdrawal. But it must be examined by the judicial officer, it must be examined by the High Court. And if they agree, it can be withdrawn.”
A TRIANGULAR PROBLEM
The issue of criminalisation of politics and the pending cases against lawmakers has a 3 dimensional character. At one end of the pyramid is the slow disposal of cases by the judiciary. It is a question of efficiency and related to the design and operations of the judicial ecosystem of the country. It is reported that there are 3.9 crore cases pending in the district and subordinate courts, 58.5 lakh cases in the various high courts and more than 69,000 cases in the Supreme Court of India. Experts point out that we need at least 60,000 to 70,000 judges in the country while the current number is only around 16,000.
Another issue is the moral degradation and depravity of the political class. This is a problem related to ethics and is a reflection of the poor ethical standards of our society as politicians are nothing but the elected representatives of the people. The third and crucial link in the juxtaposition is the investigation agencies. They have earned the dubious sobriquet of “caged parrots” and work at the bidding of their political masters. This should not be the case as ‘technically speaking’ they are supposed to be ‘autonomous’ agencies and above bureaucratic and political control. It is very common to read the news about IT, NIA and ED raids against individuals who appear to cause “political discomfort” and CBI enquiries against whom “political vendetta” is to be pursued to settle old scores.
The solution to overcome this complex and multifaceted problem too will require tremendous insight, exemplary leadership and bipartisan politics. Our present situation is similar to that described by Suzy Kassem – “When people can get away with crimes just because they are wealthy or have the right connections, the scales are tipped against fairness and equality. The weight of corruption then becomes so heavy that it creates a dent that forces the world to become slanted, so much so – that justice just slips off.”