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  COUNSELING
 
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  ENJOYING a relaxed weekend, I was checking updates on the Facebook page. I came across a b  
     
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  ARTICLE  
     
  Lily Thomas vs Union of India  
  First, redefine criminals  
   
  KERALA CLUB had organised a programme where I had to lead a discussion on a piece Prof Omcherri N.N. Pillai had written for a Kendriya Sahitya Akademi publication. I was chosen for the task, perhaps, because his writing was based on a Biblical theme. He knows the Bible as much as he knows the Ramayana, not to mention the upanishads. The hall was virtually jam-packed and there were many new faces.

One of them was an elderly lady whom I had never met. After I made my introductory remarks, I invited the participants to join the discussions. The sharpest comment on Prof Pillai's work came from the lady in question. It was not exactly flattering to the writer and I, therefore, wondered who she was.

My friend Mannodi Ravindran whispered into my ears that she was Lily Thomas, one of the senior-most advocates of the Supreme Court, friend and classmate of Prof Omcherri. I realised that only a friend could have made such an acerbic comment. After the meeting, as she tried to hail a taxi, I volunteered to drop her at her home in Lodhi Colony area. It was also an occasion to know her more.

When the car stopped at the first intersection, a girl selling jasmine flowers knocked on the car to draw our attention. Thomas rolled down the glass and bought a jasmine garland. I wondered why she bought it at that hour, though I enjoyed the fragrance that filled the car. She herself gave the explanation: "Look at that girl. She was not begging but selling flowers to earn a living. I wanted to support her. That is why I bought the flowers".

I gently reminded her that the law did not permit selling or buying anything at busy intersections. She was quick in responding to me: "I don't care for the laws that do not take care of people's needs". I could feel the earnestness of a feisty, octogenarian lawyer.

As she struggled to dial a number on her mobile, I requested the driver to switch on the cabin light. "I will be reaching in 10 minutes. I am with a friend in his car", I heard her telling her friend with whom she stayed. "I had a big, independent house in a posh area in the city. How I lost it is a long story I will narrate some other time".

Thomas might be a great lawyer but she was certainly not a good navigator. Of course, an 84-year-old person could not be expected to remember all the lanes and by-lanes in as vast an area as Lodhi Colony. I had to rely on my knowledge of the area to reach her friend's place. It was a government quarter. I could see from my car someone opening the door for her and I left. It was much later that I learnt that she was staying with my friend Omana Gopal.

Recently, Lily Thomas was in the news when a case she filed in the Supreme Court against criminalization of politics won a favourable verdict. It was the lead story in all the newspapers and news-channels and she has become the toast of all middle-class people. Several organizations, including Kerala Club, have come forward to felicitate her on her singular achievement.

While I have great admiration for what she has done, I have some reservations on the judgement. When I read it, I remembered the saying, "the road to hell is paved with good intentions". What Thomas has achieved is to get a clause in the Representation of People Act struck down. What this means is that a person who is convicted will not be able to attend Parliament or state legislatures.

At present, a Member of Parliament (MP) or state legislator (MLA), who is convicted in a criminal case, can remain a member of the House if within three months of the verdict he goes in for appeal to a higher court. He will remain a member till the appeal is decided. Since in some cases the appeal takes a few years, the member will be able to complete his term.

Under the new order, a person who is in jail will not be able to contest an election. The argument is that since a person, who is in police or judicial custody, cannot take part in voting, he should not be allowed to contest an election. It may appear funny that the same Supreme Court had allowed two Italian marines accused of killing Indian fishermen to go all the way to Italy to take part in the elections there.

If Italian elections are important for the Supreme Court, why should not Indians in police or judicial custody be allowed to take part in voting? In India, the law presumes a person to be innocent till he is pronounced guilty. That being the case all those in police and judicial custody waiting for trial have to be presumed innocent. They should be allowed to take part in the voting which comes only once in five years.

During the Emergency, socialist leader George Fernandes was arrested and kept in jail because of his alleged involvement in what was known as the Baroda dynamite case. While most Opposition leaders were released along with the lifting of the Emergency, he continued to languish in jail.

In the 1977 elections, he contested from the jail and won with a massive mandate. There have been other instances of political leaders contesting from the jail. Can anybody say that Fernandes is a criminal because a blatantly false case was registered against him?

Rajya Sabha member H.K. Dua has, in an article in The Hindu, which he forwarded to me, welcomed the court decision. Let me quote from his article: "The Association of Democratic Reforms (ADR) has come out with figures which are staggering. Going by the records of the Election Commission, the ADR says 162 out of 545 Lok Sabha MPs and 1,258 out of 4,032 sitting MLAs have declared that there are criminal cases pending against them. Those among them who have been convicted "in harness" have filed appeals so that they can serve out their full-term."

The figures, if true, are certainly staggering. They suggest that one-third of our MPs and MLAs are criminals. If any foreigner hears this, he would be shocked. They would ask, "how can Indian democracy be captured by the criminals?" Dua is a nominated member of Parliament, who never had to take part in an election, but that is not the case with most other parliamentarians and legislators.

Now who is a "criminal"? The dictionary defines him as "one who is found guilty of criminal conduct". Are all such MPs and MLAs guilty of criminal conduct? I have no reason to believe so. At the time of filing nomination, the candidate is asked whether a criminal case is pending against him or not. If there is any such case, he has to answer in the affirmative. Instantly, he becomes a "criminal" for the ADR.

In the first parliamentary election in 1952, an overwhelming majority of the winners were "criminals". Fortunately, there was no question to be answered whether they ever faced or were facing any criminal charges. The ADR was also not in existence at that time. They had taken part in the freedom struggle and violated many laws of the country. The British would have described them as criminals.

Take the case of Mahatma Gandhi. He violated the laws of apartheid in South Africa and that is why he was arrested and imprisoned there. I visited one of the jails he was kept -- the one at Pretoria which has been converted into a museum. It was horrifying to visit the jail. One can imagine how Gandhi would have felt while being denied his rights there.

Nelson Mandela is no less great than Mahatma Gandhi. He spent 27 years in jail. He was treated as nothing but a criminal. But was he a criminal? When he became President of South Africa, he could have done anything against his white tormentors but he pardoned all of them and saw to it that there was no bloodshed.

In India, Gandhi began his struggle by violating the law in the Champaran district of Bihar. He violated the laws again when he went on a march to make salt. Gandhi's story is nothing if it is not a story of a series of violations of the law. Thus violating the law was central to his life. Today workers are assured of eight hours of work, a minimum bonus of 8.33 per cent, casual leave, maternity leave etc.

No, they did not get it because one fine day the government decided that they should have these benefits. Thousands of people had to struggle and break the laws so that the workers could enjoy these benefits. Journalists were at one time paid a pittance. They had to struggle to get decent wages. But today with the unity among the journalists gone, the managements are able to force new-comers to the profession to join on contracts that last a maximum of three years. They are deprived of many benefits.

A political leader has to take up people's causes and, sometimes, break laws like Section 144 of the IPC and barricades, erected to prevent them from reaching the centres of power. Do they become criminals because they take part in people's struggles? They cannot be like the liquor barons and multi-billionaires who buy their seats in Parliament. They have to brave police lathicharge and criminal cases.

C. Kesavan was one of Kerala's tallest leaders. His statue is situated at Kozhencherry, where he made a speech known as the Kozhencherry speech, which shook the foundations of the Travancore government. He later became Chief Minister of the State. One of the criminal charges against him was that he was guilty of "stealing chicken". That was the level at which he was dealt with.

A majority of those declared as "criminals" are not actually criminals. I am sure Dua knows about it but political commentators like him do not admit it. Yes, there have been cases of dacoits, murderers and rapists becoming MPs and MLAs. The political establishment has to think of ways to prevent them from contesting elections. A blanket ban is not the solution.

Come to think of it, a vindictive government can easily institute false charges against leaders and prevent them from contesting elections. A High Court Chief Justice has in a letter disclosed how the sister of a former Chief Justice of India was chosen for the post of High Court judge when she had attained the age of 58. She did not have any legal practice worth the name and her academic record would not have entitled her to a magistrate's post.

Suppose someone is elected to the Lok Sabha. Within a few months, he is convicted by a court in a criminal case. He will lose his membership of the House. There will soon be an election in which he cannot contest. A few months later, a higher court turns down the lower court's verdict. Will he be restored his membership of the House? No, he cannot be given the post because another person has already been elected in his place.

These aspects do not seem to have been given due consideration while the Supreme Court took its decision in the case filed by Lily Thomas and Lok Prahari. Yes, criminals have to be kept away from the legislatures.

First, it has to be defined what constitutes "criminal activity". Then steps have to be taken to prevent those guilty of it from contesting elections and holding offices of profit. We need a re-look at the law. The verdict in the Lily Thomas vs Union of India case can only be a beginning, not an end. All this does not prevent me from saluting Lily Thomas for the courage and determination with which she fought the case in the Supreme Court. We need citizens like her.

The writer can be reached at ajphilip@gmail.com

Courtesy: Indian Currents Photo courtesy: Frontline
 
  By  A.J. Philip  
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