India has emerged as the first country in south-east Asia to launch fast track courts for politicians who have committed crimes. This sends a message to the global community that this country is serious about tackling law-breaking by law makers because the judiciary can only interpret the law, but not declare it. This ties the hands of the judiciary which cannot interfere with government policies or strike down laws which are framed in consonance with these policies although they may seem unjust. Hence, by weeding out corrupt law-makers, the BJP government is ensuring that those who make the law and interpret it are squeaky clean.

Advocate Ashwini Upadhyaya, who has filed the petition, has sought that convicted politicians be banned for life from contesting elections. But, the BJP government has opposed the life ban so that a criminal politician is barred from contesting elections for only six years, which hardly ensures justice for the masses.

The suggestion for a central scheme to set up special courts was made after the Election Commission supported the idea, saying the move would go a long way in “cleansing Indian politics”. Bangladesh, Pakistan and Sri Lanka do not have such fast track courts to speed up criminal trials against their elected representatives. Myanmar, too, does not have such courts which make India the first country in south-east Asia to experiment with such courts.

Politiciains, like Ghulam Nabi Azad of the Congress, have opposed these fast track courts on the specious ground that the right to equality enshrined by Article 14 signifies that politicians should not be singled out for facing lightning quick trials and that fast track courts should be set up for common citizens as well. He said that legislatures alone should not be singled out for speedy justice. It is significant that former Congress Prime Minister Rajiv Gandhi, who is no more allegedly derived benefit in the Bofors kickbacks and allegedly lied to the Parliament during the infamous Bofors years that no kickbacks had been received.

This specious argument of Congress MP Ghulam Nabi Azad found an echo in the Rajya Sabha as well when Naresh Agarwal of the Samajwadi Party said setting up fast track courts for elected representatives would create a misleading perception among the people. But, his leader, Mulayam Singh Yadav, has 136 criminal cases against him. 48 per cent of the party’s MPs and MLAs having criminal cases against them.

According to an analysis done by the Association for Democratic Reforms (ADR) and the National Election Watch (NEW), 30 per cent of sitting Lok Sabha MPs and 31 per cent of sitting MLAs have criminal cases registered against them. Of these criminal cases, 14 per cent in case of current Lok Sabha MPs and 15 per cent of the total sitting MLAs are registered under serious criminal charges. The ADR and the NEW analysed affidavits of a total of 4,807 sitting MPs and MLAs, who have been compelled to declare if they had criminal cases against them. These affidavits were submitted by the politicians to the Election Commission of India prior to contesting elections.

Among the political parties, the Rashtriya Janata Dal tops the list of tainted MPs and MLAs with 64 per cent of those elected on the RJD ticket having declared criminal cases against them. In the Samajwadi Party and the Bharatiya Janata Party, the figure is 48 per cent and 31 per cent respectively. Of the 1,017 MPs and MLAs from the BJP, 313 have been declared criminal cases.

Among the States, only the Manipur legislative assembly has no MLA with declared criminal cases. Goa, too, is notorious with at least two chief ministers being charged with embezzlement and fraud. The two are Churchill Alemao and Digambar Kamat, both of them belong to the Congress.

According to the scheme, two courts would exclusively hear 184 cases pending against Lok Sabha MPs. Bihar, West Bengal, Kerala and Telangana would get one court each to deal with 141, 107, 87 and 67 cases involving MLAs, respectively. Maharashtra and Uttar Pradesh have 160 cases apiece and there would be one special court each in both states.

But, to return to the fast track courts, according to this scheme, two courts will exclusively hear 184 cases pending against Lok Sabha MPs. Bihar, West Bengal, Kerala and Telangana will get one court each to deal with 141, 107, 87 and 67 cases involving MLAs, respectively. Maharashtra and Uttar Pradesh will have one court per state to handle 160 cases each in both states.

Andhra Pradesh, Karnataka, Madhya Pradesh and Tamil Nadu will also get one each, but 21 states, including Gujarat (54 cases), Jharkhand (52) and Odisha (52) will not have even one special court. For states with less than 65 cases, the plan is to try them in existing fast-track courts with the Supreme Court approval. But, it appears, there will be no special court to hear cases of 44 Rajya Sabha MPs because the affidavit filed by the senior bureaucrat is silent on this aspect.

The BJP government failed to provide data to the Supreme Court about how many new criminal cases were lodged against current or former MPs and MLAs between 2014 and 2017. Arguments of politicians like Azad and Agarwal that fast track courts for politicians accused of crimes may not be the best remedy is specious because in Maharashtra, we had the Maharashtra Control of Organized Crime Act, which was a special law drafted by an IPS officer to tackle gangsters who formed crime syndicates.

By all accounts, these fast track courts were successful in disposing off a large number of cases involving gangsters. Another example was that of terrorist Ajmal Kasab, whose trial was fast-tracked so that he was hung within four years whereas in murder cases, the trial court verdict, appeal to the high court, supreme court and later the final appeal for Presidential clemency may take not less than 20 years.

The finance ministry has approved an outlay of Rs 7.8 crore to start these courts after the BJP government framed a scheme to set up a dozen special courts for a year to fast-track the trial of 1,581 criminal cases against politicians, including parliamentarians and state legislators. This was disclosed by a senior bureaucrat in the law ministry who submitted a two-page affidavit to the Supreme Court giving details of the Central scheme which has received finishing touches.

Although only 1,581 cases were officially declared by politicians in 2014 when they filed their nomination papers for the Lok Sabha polls as well as elections to eight state assemblies, sources confirmed that if one takes into consideration the municipal corporators and third rung elected politicians to village panchayats, the number of criminal cases will be more than 10,000.

As they wield immense power, witnesses are scared to depose in court against politicians who wield power, which results in their discharge or acquittal. Discharge takes place when there is insufficient evidence to frame a charge whereas acquittal takes place after a long-drawn trial when evidence is scrutinised and assessed by a competent court having jurisdiction.

Today, it takes five years from the time the police record a First Information Report, file a charge-sheet and the court frames a charge. After that, witnesses for both the prosecution and the defense have to be examined and cross examined. Depending upon the number of witnesses to be produced, this trial can drag on for a minimum of five years. Accused persons and witnesses often die during the trial so that the entire cumbersome procedure turns infructuous.

At present, a lawmaker guilty of a criminal offence punishable by two years or more in jail, immediately loses the membership of Parliament or state assemblies. The apex court’s 2013 judgment bars a convicted politician from contesting elections for six years from the date the sentence ends.

The writer holds a PhD in media law and is a journalist-cum-lawyer of the Bombay high court.