Namita and Nick, our co-bloggers, have recently drawn attention to the need to decriminalise politics. The readers have, rightly, raised questions about the propriety of barring those candidates who are in the criminal justice system (at the arrest atage, or charge-sheet stage, or cognizance stage, or trial stage etc), but not yet convicted. In our zeal to get 'good' politicians, let us not forget traditional liberties, especially the presumption of innocence. Niether Nick nor Namita have suggested we debar people still to be convicted, I am attacking a widepread sentiment rather than their posts---except to say that in calling for the 'people' to vote out criminal candidates, aren't we somehow suggesting that the people know who the criminals are even before the courts do? I think presumption-of-innocence-until-proven-guilty is a value not just for the courts, but for all of us to live by. Many well-meaning social movements, especially the women's movement and the dalit movement, have managed to put in place the most draconian of laws which should worry all civil-liberty enthusiasts. Recent pressures on lawyers to refuse to take Kasab's brief (and the media trial of Manu Sharma in the Jessica Lal case) are worrying reflections of our society's increasing frustration with civil liberties. In the long run, these quick-fixes are sure to dissappoint, and will come back to haunt us.
Perhaps a simpler, fairer solution is staring us in the face. In this article, I have argued for the repeal of impunity provisions like section 197, CrPC, which require prior governmental sanction before any court can take cognizance of a case against a public servant, and in non-corruption cases, even against a former public servant. This includes all parliamentarians, ministers, bureaucrats, police etc. These provisions have been used to deny prosecution, delay trials (permission given by one government is often withdrawn by the next, and we are back to square one).
Of course, this will not suffice. We still need an independent police, independent prosecution agencies and efficient courts. Even if impunity provisions are repealed, we will still be at the mercy of our slow judicial process, but at least one major obstacle on the path of justice will be removed. It will not decriminalise politics entirely, but it will be an important step towards that goal, and one that does not entail compromising with the presumption of innocence.
Incidentally, the latest edition of the Halsbury's Law Monthly (especially the Cover Story by Gopal Subramanium) deals with some of the wider issues concerning the criminal justice system, and may interest our readers. The issue also has a debate on the recent amendments to the CrPC, especially the arrest provisions, something I have defended previously on this blog.