Most people are so outraged by the rising tide of criminals in politics that they will welcome the two latest Supreme Court judgments. One bans any convicted person from contesting elections even if the person has appealed to a higher court. The second bans anybody contesting from jail, even if only in temporary police custody or judicial custody.
Both judgments may indeed keep some criminals out of elections. But they carry grave risks of keeping honourable people out too. Many crooks have won election while in jail, but so have honourable persons (such as those jailed by Indira Gandhi during the Emergency).
Worse, the new judgment could set off an avalanche of political vendettas. Politicians often launch false cases against opponents, sometimes in connivance with partisan judges. This deplorable ploy may be strengthened by the latest judgement. We desperately need to cleanse Indian politics, but not in this manner.
The key problem is not that Indian politicians are inherently crooked or criminal. Rather, the moribund justice system gives a huge incentive for criminals to contest and win elections. Judicial processes are so dismally slow that hardly any resourceful person gets convicted quickly, and many die of old age before exhausting appeals. So, nobody knows for sure who is a criminal and who is an innocent victim of false accusations.
Besides, every party in power misuses the police to harass opponents while protecting its own goons. Instead of justice and clean politics, we have rising criminalization and rising mud-slinging, without accountability for either the criminals or mud-slingers.
The Supreme Court’s two judgments look like attempts to bypass the pernicious impact of unending legal delays. But while such short cuts have their attractions, they carry grave risks too. The right way forward is surely for the Supreme Court to devise procedures that ensure quick, time-bound justice. Judges are fond of saying that justice delayed is justice denied, yet they have failed dismally to end this injustice.
When nobody is convicted beyond appeals for decades, those with muscle and money quickly overwhelm those who are honourable and law-abiding. There is an old saying that if law-breakers are not in jail, they will be in the legislatures. That is the case today.
Seen in this light, the rise of criminalized politics is not simply due to politicians becoming more crooked. It is also that endless judicial delays have created huge inducements for criminals to enter politics, and to succeed over law-abiding rivals. Many judges have condemned criminalized politics, amidst much public cheering, but need to acknowledge their own culpability in this mess.
We cannot truly reform politics until we reform the justice system. A land without justice in a reasonable period will necessarily be a land in which lawbreakers will beat law-abiders. This will be true not only in politics but in business, the professions, and everything else.
A major reason for the popularity of Maoists in some areas is they provide instant justice, through what they call people’s courts. Even in urban areas, mafia dons hold their own private “courts” and some ordinary people go to the mafia rather than government courts for justice. The police-judicial system is broken. Of all the scandals that beset India, none rivals the scandalous lack of common justice.
Last year, a group of foreign investors asked me, “If you had to reform just one thing in India, what would that be?” I replied without hesitation, “the police-judicial system.” This surprised the foreign investors, who expected me to flag some economic or political issue. No, I said, many of the worst flaws in politics and business flow from the flaws in the police-judicial system.
The Supreme Court has sought to promote faster justice through computerization of cases, Lok Adalats and so on. Alas, justice remains outrageously delayed.
Consider the unending case of LN Mishra, former chief minister of Bihar, murdered in 1975. The 27-year-old man accused of the murder is now an ailing 65. Of the 39 witnesses he cited to prove his innocence, 31 have died. More than 20 different judges have heard his case over the years, supposedly on a day-by-day basis. When the accused sought to have the case dismissed saying the long delay had made justice impossible, the court declared that 38 years was by no means too long! If this happens in a VIP case, what justice can there be for the poor and weak?
Judicial delays have encouraged the criminalization of politics, and indeed of all society. To curb it, the Supreme Court cannot depend on its two latest judgments. Rather, it must devise and enforce procedures for quick justice.