The judgment of the constitution bench of the Supreme Court in Public Interest Foundation vs Union of India delivered on Tuesday is a classic example of what the judiciary should not attempt to do – solve all the problems of the country.
The petitioner had sought directions from the court to eliminate criminals, described as ‘termites’ in the judgment, from Indian politics.
No doubt there has been an increasing criminalisation of Indian politics, with a large number of legislators having criminal antecedents. But this problem, like many others in the country – rising petrol and diesel prices, mounting unemployment, increasing farmers distress and widespread malnourishment etc – cannot be solved by the judiciary. It will require a people’s struggle to resolve these problems.
With due respect to the Supreme Court, it would have been well advised to have refused at the very outset to entertain the petition seeking the elimination of criminals from Indian politics, for that is neither its job nor does it have the capacity to do so. The job of the judiciary is to decide, in accordance with the law, disputes which come before it. Its job is not to create law, as held in Divisional Manager, Aravali Golf Course vs Chander Haas.
What the petitioners, Public Interest Foundation, really wanted was for the Supreme Court to create a law which would disqualify persons who have been charge-sheeted by the police in a criminal case, from contesting elections to the legislature. But creating law is the task of the legislature, not the judiciary, and presently there is no law which says that a person is disqualified on being merely charge-sheeted.
After many days of arguments and labour in the case, and valuable time spent by five judges which could have been usefully utilised in deciding cases which have been pending for years, what was the outcome? Almost nothing. As the Hindi saying goes ‘Khoda pahaad nikli chuhiya‘ (the Hindi equivalent of much ado about nothing).
All that the 120-paragraph long judgment contains are the court’s anguish at the plight of the people, and its own helplessness to do anything about it except recommend to Parliament to amend the law (which of course it will not do), with homilies like “society has a legitimate expectation to be governed by proper Constitutional governance” and “substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering politics”.
Yes, in paragraph 116 there are five directions, but what is their import ?
Direction (1) is that a candidate must fill in the prescribed form. But that is already the requirement of the rule. No direction was required.
Direction (2) is that the candidate must fill in bold letters that he is implicated in some crime. As if that matters.
Direction (3) is that the candidate must inform his party that he is implicated in some crime, As if the party does not know or cares.
Direction (4) is that on receiving information from a candidate of his criminal antecedents the party must put this information on its website. As if people will go to that website, and even if they do, will care. Most people in India only see caste and religion when they go to vote, not criminal antecedents.
Directive (5) is that the criminal antecedents should be published by the candidate and his party in newspapers, which are widely circulated in the locality. Another unrealistic directive. There are fake newspapers everywhere in India with little or no circulation, and these are used to advertise public auctions or job vacancies for namesake. This directive will only lead to a further proliferation of such fake newspapers.
And what if these directives are not obeyed? Will it lead to cancellation of the election result? Nothing is clear from the judgment.
So all said and done, it was much ado about nothing.