At a recent roundtable on electoral reforms to curb criminalisation of politics organised by the Public Interest Foundation, former chief justice of India M N Venkatachaliah made a forceful argument for amendment in the Representation of People Act, which currently disqualifies a member of a state or Central legislation on ground of criminality only after he has been sentenced for a certain period after conviction or if his offence involves moral turpitude.
He forcefully endorsed the consensus view that the law must be amended to ensure that anyone against whom a chargesheet had been filed by the investigating agency and accepted by the court six months prior to election, should be disqualified from contesting in elections.
Much to the surprise of the audience, the proposal was vehemently opposed by former Union law minister Ashwani Kumar, who eloquently argued that this militated against the cardinal rule of law that everyone should be presumed innocent till proved guilty. The argument is not unfamiliar. Political parties have frequently invoked it when defending their members accused of serious misdemeanours. In fact, the doctrine of presumption of innocence was invoked by AICC spokesperson and Union information and broadcasting minister Manish Tewari when the clamour for the resignation of Kumar and former railways minister Pawan Bansal followed CBI disclosures about their role in handling CBI investigations into coal block allotments and Railway Board appointments.
The doctrine of presumption of innocence is undisputedly a universally accepted tenet of law, but its application is confined to determination of guilt or innocence of an accused in criminal law. The political class has subverted and redefined it for its own benefit and its political version is bizarre. When a politician is accused of wrongdoing, everyone must try to imagine the politician is blameless, regardless of the evidence.
This version bears no resemblance to the legal version, which has been well understood since time immemorial. Except for assisting a judge in appreciation of evidence in a criminal trial in determining guilt, it has no other application even in criminal justice. If innocence was always presumed, no bail application would fail and no application to freeze alleged proceeds of crime would succeed. Outside a courtroom, innocence is seldom presumed. If the police did so, nobody could ever be arrested or charged; no search warrant or listening device warrant could ever be issued; the state-based anti-corruption and criminal investigation authorities could never conduct investigative hearings.
In fact, in many cases the administrative law requires people to prove their innocence. Public servants are routinely suspended or transferred on the strength of mere allegations. People facing unresolved criminal allegations, or allegations of financial impropriety or workplace sexual harassment, are rarely offered jobs. Due diligence or vetting of those seeking government jobs or important public appointments is the accepted process of selection in even the most open democracies.
As for those holding positions of power, the exercise of which can have far-reaching results for the people and the nation, the issue is limited. If there is credible evidence of wrongdoing or turpitude—criminal, civil or moral—they must either voluntarily opt out in public interest or should be asked to go till they are cleared. Those holding constitutional responsibility to protect the national interest cannot abnegate their duty by pretending that their hands are tied by a ‘presumption of innocence’.
Unfortunately, this is a game that all political parties play when it suits their partisan interests. Neither side wants to throw stones at the other’s glass house to avoid exposing their own fragility. As with the emperor’s new clothes, nobody is prepared to break the spell by accepting that the ‘presumption of innocence’ simply does not exist in the political context in which it is sought to be invoked.
