The corrupt and criminals in the eyes of the Supreme Court

By

Faraz Ahmad

 

The latest Supreme court verdict ostensibly to block the entry of the corrupt and criminal elements into Parliament and state legislatures is guided by the fear of the deluge of the OBCs and Dalits in Parliament and state legislatures

 

There is such a glee and rejoice in the self righteous Brahmanical establishment of our country at the blow Justice S J Mukhopadhayaya and Justice A K Patnaik dealt to the “corrupt and criminal” politicians of the nation by ordaining that MPs and MLAs shall stand disqualified the day they are convicted for any offence which entails a penalty of more than two years’ imprisonment and simultaneously disallowing those in jail from contesting elections.

 

In two successive days this two judge bench first overturned a judgment of a larger five judge bench of the same court and struck down Section 8 (4) of the Representation of the People Act (RPA) that allowed legislators and members of Parliament, convicted by any court, to retain their membership if they appealed against the judgment within 90 days in a higher court and succeeded in securing a stay from that higher court, based on the sound principle of our Constitution that a person shall be presumed innocent unless pronounced guilty and has been held to be so by the highest court of the country.

 

Justice Mukhopadhyaya and Patnaik pronounced no, the disqualification of a MLA or MP will come into effect immediately on the pronouncement of any adverse judgment even by a magistrate, never mind if at some later date that is overturned and held void by a higher court. The next day the same bench of Justices Mukhopadhyaya and Patnaik reinforced their resolve against the unwashed masses by pronouncing that any politician in jail, except held in preventive detention will henceforth not be entitled to file his nominations papers for any election. What a great judgment! What an earnest desire to cleanse body politic and ensure that only the deserving clean people get elected to our portals of democracy! How noble and lofty are the ideals of our Danials of Justice!

 

Manish a Research Scholar at NationalLawUniversity explained in the Firstpost.com yesterday that, “Questions involving substantial interpretation of the Constitution, under Article 145, are to be heard by a bench of five judges or more, called Constitution Bench. Under internally evolved rules of judicial discipline, the conclusions in any judgment delivered by a bench are binding on all future benches of the same or lesser strength, and can only be set aside (or ‘overruled’) by a larger bench. The present case was heard by a Bench of two judges,” he observed, pointing out that in effect the honourable justices had overreached their jurisdiction.     

 

But the common theme of the Firstpost itself and The Times of India and even the normally sober The Hindu which carried the photographs of the usual suspects, Lalu Prasad and Kanimozhi was one of self-righteous vindication that now they will be able to close the doors of Parliament and legislatures to this “corrupt and criminal” lot which started entering the legislatures in a big way since the implementation of Mandal Commission report, though to date there is no reservation for the OBCs to enter Parliament and state legislatures.

 

Curiously the judgment of the two honourable justices was delivered on a petition filed by a Supreme Court lawyer Lily Thomas, an activist lawyer of the Supreme Court who normally takes up women’s issues, and Lok Prahari Foundation, a Lucknow based non governmental organization (see lokprahari.org). It has 20 members, of which almost all are retired bureaucrats, except two, one a retired judge of Allahabad High Court and the sole OBC on the panel is a retired judge of a district court. The only lady member is a retired professor of LucknowUniversity. An engineer and a journalist who while enjoying the comfort of government officers’ colony at Kaiserbagh in Lucknow, is filing PILs against corruption in society, are also Lok Prahari members. The case composition of this score is 10 Brahmins. For display purposes, they also have an OBC, perhaps a Dalit, the lady member appears to be from the Sikh community and one Muslim who is so obviously upper caste and the six others are all savarnas.

 

Thus it is now clear that those concerned to save our great nation from these unwashed, unclean, dark skinned dalits and backwards belong predominantly to the Brahmin mahasabha. And it is equally interesting to note that the two judge bench which in its wisdom has overturned the verdict of a constitution bench, comprised of one Brahmin and one Kayastha. Patnaiks are not even two per cent of Odisha’s populace but are ruling that state almost since independence, save a Mahtab here or a Satpathy there.

 

But more interesting is the history of Justice Mukhopadhayaya. He is a Brahmin from Bihar who was a member of the two judge bench comprising of him and Justice S N Jha another Brahmin who not just conducted the trial of Lalu Prasad but virtually supervised the investigations into the fodder scam in which Lalu was an accused and had to resign his chief ministership in 1997. After the creation of Jharkhand Justice Mukhopadhayaya carried on his inquisition of Lalu Yadav from Ranchi and Lalu never got any relief in any of the cases that went to Justice Mukhopadhyaya. Every time he had to run to the Supreme Court to secure a relief. Now, Lalu might be guilty of corruption but this has to be established through fair trial and criminal jurisprudence clearly underlines that justice should not only be done but seen to be done. Therefore his guilt cannot be a matter of conjecture, based on the propaganda campaign of his political and urban upper caste detractors. No one, not even Justices Mukhopadhyaya or Jha had a right to carry on a political vendetta just because they could not stand a rustic “buffoon” leading the state of Bihar. Lalu has in fact become the symbol of whatever our safrronised urban savarnas find wrong with the political class. This resonated so loudly in the rallies of Anna Hazare, Baba Ramdev and later in the refrains of Arvind Kejriwal.

 

But it mainly smacks of a desire to disenfranchise the unwashed masses. In Pakistan General Parvez Musharraf had ordained that no non graduate could contest elections. Of course you could graduate from a madrasa and were eligible to sit in the national or provincial assembly but a non graduate is still forbidden to enter the portals of Pakistan National Assembly or state legislatures.

 

It is worth recalling that during the 2000 election of George W Bush which he won in a controversial contest against Al Gore, it was widely reported how a great number of African Americans were disenfranchised by issuing traffic tickets to an unusually large number of young men and women for wrongful parking mainly in two states, Texas where he was the Governor and Florida governed by his brother Jeb. Back in India, before that there was a movement by some prominent citizens of Mumbai to save the beaches from the ‘uncivilised, uncouth Bhaiyas and Biharis’ defecating at those pristine beaches reserved only for the morning and evening walks of our proud Mumbaikars. The hoi polloi of Juhu and South Bombay had come together to join this campaign and eventually came to the conclusion that since the politicians tend to patronize these migrants all the time to win their elections, resulting in the daily multiplication of their numbers, the best way out was to disenfranchise this scum of the earth.

 

Actually Justice Mukhopadhayaya belongs to that club of judges led by the very distinguished honourable former chief justice of India R C Lahoti who chaired a three judge bench of the Supreme Court which struck down in 2005 the Illegal Migrants (Determinants Tribunal) (IMDT)Act, 1983 utra vires of the Constitution on the ground that it has proved to be ineffective in deporting illegal migrants (read Muslims) from Assam, in effect attempting to change the demography of Assam and disenfranchise a whole lot of Muslims. Of course the UPA Government did not heed to the Supreme Court diktat but it got a tongue lashing from L K Advani’s in the Lok Sabha on that score. (Wikipedia on IMDT Act)

 

Justice Lahoti ought to be remembered for very many things (Wikipedia biography of Justice Lahoti). For one, at a time when there was a general hue and cry against corruption all around including judiciary, Justice Lahoti pronounced that the judiciary was clean, giving a bit of shock to everyone. Then almost at the end of his tenure on September 29, 2005 he transferred out the Chief Justice of Guwahati High Court B K Roy to Sikkim High Court, whom noted jurist Fali Nariman described a “Man of high integrity” and called Justice Lahoti’s action as punitive (The Tribune, September 30, 2005). Soon after his retirement Justice Lahoti was seen sitting along with the students of AIIMS protesting against the April 2006 decision of the UPA government to effect 27 per cent reservation for OBCs in Government institutes of higher learning like the IITs, the IIMs, AIIMS and all central universities. His son appeared as the counsel for the anti reservation students in a PIL in the Supreme Court which eventually upheld reservation for the OBCs.

 

But Justice Lahoti is best remembered for his notable judgment in Punjab and Haryana High Court (Wikipedia biography of Justice R C Lahoti) when he held that nobody having more than two children would be eligible to contest the local bodies’ elections, thus disqualifying the predominant population in any village in India and most certainly the poorer subaltern classes. Eventually the whole brouhaha about corruption and criminalization in politics is raised by the urban upper caste upwardly mobile section of our society, numerically small but more articulate and visible on all the TV channels. Since Mandal report has come, and the OBCs seem to be taking the reins of power in their hands this camera savvy crowd feels a desperate need to turn back the wheel of time and return to the glorious 1960s when only the cultured and civilized people sat in Parliament to make laws naturally in consonance with the needs of their class. Now that they see democracy passing into the hands of the subalterns they are devising all kinds of means to block those “undesirable elements” from entering legislatures and Parliament. They tried Anna Hazare who seemed to be succeeding briefly but couldn’t go too far; they tried Baba Ramdev but he has limitations as well. Arvind Kejriwal is a brave man and is trying hard. But so obviously he too cannot prevent a Lalu or Mayawati from ruling this country so the best option is to run to the venerated judges and see if they can hold back this deluge for a while.

 

As for the Lalus and Maywatis of this world, they too ought to learn that Parliamentary democracy has its limitations and no real change is possible unless you come out on the streets like the Egyptians have come out against Muslim Brotherhood and decided to fight them in pitched battles on the streets.

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Faraz Ahmad is a Freelance journalist with past association with several national dailies

 

 

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