Daya Varma and Vinod Mubayi


INSAF Bulletin has argued in the past that the political problems of India cannot be fixed by the judiciary.  The independence of the judiciary is undoubtedly important in a democracy. But the judiciary is not expected to replace or dominate the parliament, which alone should have the power to make laws. If it does so, it becomes like the civilian equivalent of military rule.


The Ordinance on striking down the removal of politicians charged with a crime from Parliament, which the UPA government submitted for the approval by the President, would have nullified any rulings passed by the Supreme Court; it  was inappropriate, not because of its objectives but because it bypassed the Parliament. Likewise the condemnation of the Ordinance by Rahul Gandhi was clearly unwarranted. However, this is not the main subject of this article.


These observations are occasioned by the judgment of a CBI Special Court convicting Lalu Yadav, former Chief Minister of Bihar, and ousting him from Parliament. The CBI (Central Bureau of Investigation) is expected to investigate into wrong doings by any civil or political official including the Prime Minister; it should be entitled to identify these and report them to the appropriate authorities. It does not appear that democratic rights are enhanced by allowing CBI Special Courts and their judges to decide who can and who cannot contest in elections. Even if CBI was within its rights to try Lalu Yadav, the least it could have done was to have a panel of jurists decide the case, not a single CBI judge. This decision is also ironic in view of the Patna High Court’s simultaneous acquittal of the accused of the Ranvir Sena who had been previously convicted and sentenced to death by a lower court for the murder of 58 poor peasants in the Laxmanpur-Bathe massacre in Bihar. Lalu Prasad Yadav, for all of his alleged crimes in the fodder scam, is also one of the most uncompromising secular political leaders in the country. He alone had the courage to arrest Advani on his anti-Babri Masjid Rath Yatra and he is perhaps the only non-Congress political leader unlikely to ever join BJP for a berth in the Cabinet. In the polarized political climate in the country caused by Hindutva, it is unclear to what degree judicial animus against Lalu Yadav was prompted by his secularism.


It is up to political parties to desist from nominating people with a tainted record for public office. It cannot be the prerogative of CBI or even the Supreme Court. And the Supreme Court did not enhance Indian democracy by striking down Section 8 (4) of the Representation of the People Act to allow what CBI did.  The Supreme Court is expected to interpret the law in accord with the Constitution and not amend it. A bit of election history shows that. In the first general elections in 1952, which followed the Great Telangana Peasant Struggle, many members of the Communist Party of India (CPI) that was banned for a number of years contested elections from jail.  Sarju Pande contested for two seats, one for the Assembly and one for Parliament from one of the UP jails and won both. Likewise many members of the CPI from the Telangana area were either in jail or had just come out of the jail and handsomely won the elections making CPI the official opposition in the first democratically elected Parliament in India. One member of the CPI (R. P. Reddy) secured the highest number of votes recorded in any constituency, far more than did Nehru.


If persons who are in jail or have criminal records should not be in the Parliament or the State Assembly, then it is the task of the Indian Parliament to pass such an amendment to the Constitution.  CBI or the Supreme Court should not have the power to determine who can and cannot contest elections.  India is one of the few countries which have escaped military dictatorship. It should also ensure against putative dictatorship by the Judiciary. The difference could turn out to be slight.

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