Special courts for everyone; not just for elected representatives is required

The government’s decision to set up special courts to deal with cases against elected representatives has been hailed as being one that could deal a body blow to criminal politicians. But is it, really?

RN Bhaskar — Dec 14, 2017 03:52 PM IST

The government’s decision to set up special courts to deal with cases against elected representatives has been hailed as being one that could deal a body blow to criminal politicians.

With respect, this author believes that the government’s offer is mere hogwash. The Supreme Court should reject it for being nothing but that.

True, there are (as of 2014)  as many as 1,581 Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) facing prosecution in a mind-boggling 13,500 cases. The numbers must be higher today. And would only have increased since then.  On its part, the government too said in its affidavit to the apex court that it does not have data on how many of these cases have been decided and whether any new case has been filed against an MP or MLA between 2014 and 2017. It has sought more time to collate that information (it is also a sad commentary on governance when even numbers of cases are not available in an era of electronic databases and communication).

It may be recalled that on November 1, the Supreme Court had asked the government to come up with a scheme to set up special courts for trying criminal cases against legislators. The court was hearing a PIL filed by Delhi BJP leader and advocate Ashwini Kumar Upadhyay, seeking a lifelong ban on convicted politicians contesting elections.

“As per the directions of the Hon’ble Supreme Court of India, it is proposed to have 12 special courts with an estimated expenditure of Rs 7.80 crore over a period of one year to dispose of all cases involving political persons,” the Law Ministry said in its affidavit. Incidentally, even though the government is willing to set up these special courts, it is not willing to impose a life-long ban on the holding of public posts by such convicted legislators.

The problem lies elsewhere

Yes, an early conviction of a legislator will help.  Only a bit. It will not stanch the criminalisation of politics.  This is because criminalisation of politics begins precisely where the police does not inspire confidence, and the adjudication of crimes at lower courts is terrible.

Consider a simple instance.  If a father finds his daughter being teased or molested in a slum, what would he do?  Would he go to the police? Or would he prefer to go to the local dada (slumlord) and ask him to protect his daughter.  Ask any slumdweller.  He will tell you that such a father would go to the dada because he is guaranteed redressal almost immediately.  The vulnerable need protection now; not merely the promise of protection several years later.

Remember, this is precisely the ability to dispense justice that made the notorious Dawood Ibrahim popular with his people.  He adjudicated over land disputes.  And even when he moved to Dubai, builders would go to him to settle property deals.  His ability to deliver justice made him more powerful – and dreaded – than the local police.

And that is what the slumdweller also does. He sends word to the troublemakers asking them to desist.  And if they don’t, he will use other means – even extra-legal methods – to prevent a person in his territory from being troubled.  In turn, it is quite possible that police complaints are registered against the dada.  That does not bother him.  He knows how to deal with cases –at the police station and at the level of lower courts.

That is why the dada is a protector for the poor father.  And when he stands for elections, it does not matter how many cases he has against his name.  He remains a protector for the father and thousands of other slumdwellers like him.  They will vote for him.  Calling him a criminal will not deter them.  For societies where law and order has broken down, this protector is more important and relevant for people that the police or the courts.

Fair is foul, and foul is fair

It is in this manner that the illegitimate gains legitimacy, and the legitimate begins to appear illegitimate.

Does the government really want to stop criminalization of politics?  Then let it arm the courts with the power to suspend and dismiss from service policemen who do not register cases against errant persons within 24 hours.  Arm the courts with powers to dismiss the police when they make out a poorly drafted chargesheet which has so many loopholes that it will not stand up in a court of law. Ditto for policemen who choose not to follow the due process of investigation (remember the Aarushi case?) or fail to record evidence diligently.

At the same time, arm the higher courts with powers to immediately try (and dismiss with penalties) judges of lower courts where culpability is obvious, and where judgements have been pronounced without checking for collusion or incompetence on the part of the police.  In other words, isolate politicians from the police system, and from the appointment of judges at lower levels.

When the poor father is convinced that his grievances and fears can be redressed almost immediately, he will then go to the police station, not to a slumlord.  Then there won’t be the need for a dada at all.

The present system advocated by the government will leave a ruling party with powers to slow down the drafting of charges against politicians who support the current government.  Watch how chargesheets have not been filed against key politicians even today, even though everyone is aware of their complicity in crimes.  For instance, there is a politician who aggressively pursued the auctioning of police posts to the highest bidder.  Everyone knows about it.  A former police commissioner, Julio Ribeiro, has written public articles against such a practice. Yet the politician remains under investigation for several years.  But no conviction has been launched.

Three things

If the Supreme Court is keen on stemming the criminalization of politics, it must compel the government to do three things.

First, compel the government to draft rules to ensure that cases get registered within 24 hours and that the case papers are well drafted.  Failure to do these will result in dismissal (currently, when an aberration is exposed, the policeman stands suspended, and then re-inducted into service when public memory has faded). This may mean that police reforms that have been pending for decades are pushed through.  The Supreme Court has these powers. It must exercise them, for the sake of humanity and law enforcement.

Second, the courts must compel the government to increase the number of lower level judges, and arm itself with powers to set up speedy adjudication measures in place in case there is a suspected judicial complicity or incompetence. Such aberrational judges need to be weeded out quickly.  If that is not done, these wobbly kneed dispensers of justice will rise in the ranks and corrupt even the high level judges.

Third, ensure that all cases against all misdemeanours are chargesheeted, tried, and given a conclusion.  It is easy for people to decide to approach another higher level of courts, if the cases at the lower level are decided within a year.  But 10 years or more is long enough to wear out a person, except the one who is wallowing in ill-gotten wealth.  A man who is dispossessed of his wealth does not have the stamina to wait for 10 years or more.  Delays in justice only benefits the wrongdoer, not the victim.

An anecdote

The present offer of the government is laughable.  It needs to be reminded of an episode which took place in Singapore.

A girl of Indian origin had a dispute with a Singaporean shopkeeper who promised to buy goods from her, but did not pay up the agreed amount on the grounds that she offered similar goods to another shopkeeper at lower prices.  The girl protested, pointing to the contract. But the shopkeeper was dismissive.  Distraught the girl returned home, knowing that she could not fight the clout of the shopkeeper who was extremely well connected.

On being taunted by her husband (that she was more merciful to the shopkeeper than to him), the girl penned a complaint to the local court.  To her surprise the court asked her to approach the specified judge within a week. She went there.  The documents were examined by the clerk, and sent to the judge with his notings.  The process lasted barely 10 minutes.  The shopkeeper was also there.  He was asked to produce his copy of the contract.  The clerk noted that there was no clause which permitted the shopkeeper to withhold payment.

In ten minutes the judge called both parties in.  He asked the shopkeeper if there was anything in the contract that allowed him to withhold payment.  The shopkeeper began protesting.  The judge merely asked him to reply in a yes or a no.  When the “no” was blurted out, the judge merely stated in his order that the full payment with interest should be made within a month, and that the schedule of payment could be recorded with the court clerk.

The girl was ecstatic. She thanked the judge and began to walk away.  The judge called her back.  He said “Madam, could you tell me why this complaint is being made two months after the incident took place?” She said that she was undecided.  The judge told her, “This time the court is excusing you.  But next time, if you cannot complain immediately, you will have to be fined.  Do you want to make a mockery of the process of law? Do you think evidence can stay alive for so much of time?”

Then look at the way even murder cases like that of Sheena Bora drag on for years. At such times, the Supreme Court too must ask – “Do you think evidence can stay live for so long?”.

In other words, the government’s offer remains an act of tokenism.  It is not a clean solution.