Reporter’s Diary: Of criminals joining political parties and pocketless coats

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into interactions between judges and lawyers appearing in cases.

In the criminalisation of politics case wherein the Supreme Court’s Constitution Bench reserved its verdict on August 28, there were quite a few interesting moments.

Senior Counsel Krishnan Venugopal was arguing in favour of the petitioners, who sought a direction to the Election Commission of India to deny party symbols to those charged in criminal cases.

Finding that the Bench was reluctant to pass such a direction, Venugopal relied on statistics to sound an alarm.  In 2004, he said, the number of Lok Sabha members facing criminal charges constituted 24 percent of the House. This figure increased to 30 percent in 2009 and 34 percent in 2014.

“When it reaches 50 percent, our Parliamentary system will be compromised. Can your lordships sit back and do nothing at all?” he asked the Bench.

With the Bench continuing to be unimpressed with the data, Venugopal sought to explain why political parties attract criminals. They do so in order to self-finance their election campaign, he said.  When criminals become legislators, the chances of their conviction by a court go down, as they aim to avoid judicial proceedings through political patronage, he explained.

Then came his crucial revelation as to how criminals influence the judiciary.

“A phone call to the Judge that his close relative was seen in the park is all that is required for the criminal to manage his case and influence the outcome in his favour”, Venugopal submitted.

The remark, though made in all sincerity, embarrassed the Bench.  Justice Rohinton Fali Nariman and Chief Justice Dipak Misra discussed among themselves the import of this statement, as it conveys that judges can be easily influenced by criminals who succeed in the elections. On seeing that the Bench was not too pleased with the remark, Krishnan Venugopal didn’t persist with this line of argument.

He then asked the Bench whether it would consider recommending a person to be appointed as a judge, if he or she is facing a criminal charge. If the answer is negative, he added, why then should there be a different standard for our legislators?

“Like Caesar’s wife, a legislator must be above suspicion”, he added.

This was, however, countered by Justice DY Chandrachud, who distinguished suitability of candidates for membership of the legislature from eligibility conditions for a judge. The disclosure of information would serve the purpose of suitability, without disqualifying a candidate, he said.

At this point, CJI Dipak Misra turned to Krishnan Venugopal’s father, Attorney General KK Venugopal, and asked him whether political parties could be directed to disclose publicly that their candidates have been charged with certain offences. The AG, who has been opposing any judicial intervention in the matter, asked:

“Why before elections?  It involves the right to privacy of the candidates, and your lordships have declared it as a fundamental right in the Puttaswamy case.”

Senior Counsel appearing for the Election Commission, Meenakshi Arora, however disagreed with the AG. She said that giving the electorate an informed choice requires that information about the candidates reaches the electorate. Today, information about the criminal antecedents of candidates is on the EC’s website just before the polls.

This does not fulfil the judgment of the Supreme Court in the PUCL/ADR cases which made disclosure mandatory, she admitted.

When you go to Malaysia, wear pocketless coats

The hearing of the petition in the Supreme Court challenging the practice of female genital mutilation (FGM) in the Dawoodi Bohra community (Sunita Tiwari v Union of India & Others) yielded interesting anecdotes with reference to the doctrine of strict liability in criminal jurisprudence.

Senior Counsel Abhishek Manu Singhvi, who is defending the practice on behalf of the Dawoodi Bohra women, claimed on August 28 that it could not be called as an offence under the Protection of Children from Sexual Offences (POCSO) Act, as mens rea is an undeniable ingredient of the offence under the Act. For the sexual assault on a child, sexual intent is necessary, he argued, thus suggesting that the FGM practice is devoid of such an intent.

When Attorney General KK Venugopal intervened to suggest that the petitioner and the government are not relying on POCSO, but on medical opinion, Singhvi disagreed and claimed that the Act’s provision dealing with penetrative sexual assault has been cited against the respondents, who defend the practice.

Arguing that strict liability is anathema to criminal jurisprudence, he said that it could land a doctor treating a girl child guilty of sexual assault. The doctrine of strict liability means that for a certain type of offences, the ingredient of mens rea can be dispensed with.

At this point, the Bench asked Singhvi whether strict liability offences are recognised in countries like Malaysia, which has a mandatory death sentence for drug-related offences. Agreeing with the Bench that mere possession of a banned drug could make a person guilty of the offence in Malaysia, even if someone else puts it in your pocket, and that absence of mens rea is not a defence there, he asked how could it apply to offences under POCSO.

When Chief Justice of India Dipak Misra asked whether Singhvi had been to Malaysia, Singhvi said yes, and added that one has to go there with a pocketless coat, to evade strict liability.