Amending law to eradicate corruption

Reasoned orders are the keystone of judicial accountability and transparency, enabling litigants, the legal fraternity, and the wider public to understand the basis on which decisions are made. The absence of well-founded reasoning erodes trust and impedes the development of coherent jurisprudence.

The 130th Amendment Bill to the Indian Constitution was introduced in the Lok Sabha on August 20. This amendment can be seen as a tough measure taken by the Union Government to ensure that politics remains ethical and pure!

However, constitutional experts and seasoned observers are openly discussing the flaws within the bill. The focus has especially sharpened on this bill after certain loopholes that echo opposition sentiments from the Congress-led India coalition were exposed. The rise in criminal tendencies in politics is causing widespread concern.

A national organization called the National Election Watch, established to promote democratic reforms, recently released an analysis for the country.

The analysis indicates that of the 543 candidates who had won in the 2024 general elections, 251 members-meaning 46 per cent-had declared pending criminal cases against them in their election affidavits. This marks a steady increase compared to the 43 per cent in 2019, 34 per cent in 2014, and 30 per cent in 2009. The analysis concludes that criminal cases have risen by nearly 55 per cent in the last 15 years.

No matter how much we wish that political leaders should not have criminal tendencies, their numbers keep increasing by the day. The main purpose of the bill proposed in the Lok Sabha is that if a Prime Minister, Chief Minister, or a Minister is arrested in a criminal case punishable by imprisonment of five years or more, even while under 30-day remand or custody, the individual must resign, failing which they would be disqualified. Such individuals are unfit to hold office.

When the ruling party informed the Lok Sabha that the bill’s primary objective was to take a decisive step towards clean politics, it was encouraging. People have lost faith because corrupt politicians cling stubbornly to their positions. However, how much this bill will truly support corruption-free politics is something that needs deep consideration. Constitutionally, ministers, chief ministers, central ministers, and the Prime Minister come into and hold office due to the pleasure (confidence) of the Governor or President.

Articles 75, 164, and 239AA of the Indian Constitution clarify the powers of the President/Governor concerning central and state ministers, including Delhi. Under these provisions, the criminal justice system presumes an accused person to be innocent until proven guilty and sentenced by the court.

Regardless of the bill’s intentions, the accused have many legal options to seek relief, making it difficult to take swift action against corrupt individuals, contrary to the expectations. Courts have generally delivered such verdicts in these matters. Overcoming this challenge has become a complex issue for legal experts.

In practice, the rules are being applied differently to government employees. If they are convicted in corruption cases, the law applies equally to elected public representatives and government employees. However, if there is just preliminary evidence of corruption allegations, the government employee is temporarily suspended from duty. Similarly, even if during inquiry or investigation the employee is given the ‘benefit of the doubt’ or prosecution does not proceed in courts, the department may still take disciplinary action.

In contrast, elected public representatives may avoid punishment in courts due to the ‘benefit of the doubt’ but can still hold significant political positions. This apparent disparity raises the million-dollar question of whether corruption-free governance can truly be achieved under the current democratic system and laws as they stand today. Consequently, while this bill is being thoroughly debated, doubts among legal experts and the general public remain unresolved. Officials in power as well as public representatives continue to lack clear legal solutions on how anti-corruption laws should be more effectively and uniformly applied and enforced without discrepancies.

Another noticeable inconsistency is in how the law is applied to legislators versus ministers. Members of state legislative assemblies or Parliament are disqualified only if convicted under the Representation of the People Act. However, if this bill comes into effect, ministers will be required to resign immediately upon arrest. It is difficult at this moment to say how such differences will be addressed and resolved.

There is one undeniable truth. The bill appears to signal that the government is preparing to crackdown decisively on corruption and criminal activities among politicians.

While ordinary people may not fully understand the laws, those in power and political representatives who have experienced government positions deeply desire to completely eradicate the notorious corruption, even rooting it out by the toes. They strongly believe that only then will democratic governance function properly.

Currently, a Joint Parliamentary Committee (JPC) for going through the provisions of the bill. It will submit to the parliament with adoptable changes in the proposed bill. Probably a balanced view may be arrived at when parliament discusses for adoption of the amendment. While in power, corruption becomes second nature for most of the leaders. As a result, governance becomes less effective and society suffers.

Any official or a public representative, who fails to deliver justice, is doing injustice to the people. Governments and opposition parties must never forget that laws exist to ensure justice for the common man!

(The writer is a former IPS officer, who retired as Additional DGP-HR)