ON June 20, two respected NGOs released a list of 53 of the 541 MPs recently elected to the Lok Sabha against whom charges have been framed in criminal courts. As many as 24 are from the ruling Bharatiya Janata Party. If convicted they will be disqualified. They need not lose sleep. The average pendency of criminal cases is 10 years.

If anything, the figures err on the side of caution. For, on May 19, Indian Express carried a report which said that as many as 186 of the newly elected MPs had criminal cases pending against them in the courts; while 112 faced “serious” criminal cases. The serious charges are murder, attempt to murder, kidnapping, crimes against women and disturbing communal harmony.

Presumption of innocence till adjudged guilty is a fundamental of our jurisprudence. However, what late Indian chief justice Mohammad Hidayatullah said in a case before the Supreme Court is as relevant now as it was 45 years ago and as applicable to legislators as to ministers. “It cannot be stated sufficiently strongly that the public life of persons in authority must never admit of such charges being even framed against them”.

Many lawmakers in India face criminal charges.

There is another aspect suggesting a deeper malaise.

B.K. Nehru of the Punjab cadre of the Indian Civil Service, put his finger on the spot when he said, “The new entrants into political life are, by and large, not men who are interested in policy … They are in the legislatures in the pursuit of power and they pursue power not only for its intoxication, but for the pelf that is the accompaniment of power.

“It is interesting … that in one particular state no less than 30pc of the legislators are involved in criminal cases.... The aim is to become a minister; but opportunities for private gain are not limited to ministers alone; these are available in plenty to all members of the legislatures.”

Nehru was speaking in 1981 of the malaise in the states. Already by then it had spread to New Delhi which brings us to another disturbing feature highlighted by the Indian Express report; namely the enormous affluence of some MPs in the Lok Sabha. “A report of the Association for Democratic Reforms shows the average assets of crorepatis in the soon-to-be constituted Lok Sabha is Rs14.61 crores which translates into a total of Rs6,500 crores.”

Of them, 237 crorepatis belong to the ruling BJP; 35 to the Congress; 29 to the All India Anna Dravida Munnetra Kazhagam of Tamil Nadu and 21 to West Bengal’s Trinamool Congress.

These salutary disclosures were made possible by the Supreme Court’s order in 2002, calling for the disclosure on a sworn affidavit by all candidates for election to the legislatures, of convictions, pending criminal cases, assets and educational qualifications. The law was amended to compel disclosure of assets.

These problems were not absent from the minds of the framers of India’s constitution. Dr B.R. Ambedkar discussed both, the law-breaking legislator and the inexplicably affluent one. But his approach was superficial.

He said in December 1948: “I think it would be too shameful an imputation to the people of this country to say that it is necessary to make an express provision of this sort in the constitution because the people of this country are likely to elect persons who are criminals, who have committed breach of trust and who have failed the public in the performance of their public duties.

“I think these weaknesses are inherent in all societies and no good purpose will be served by advertising them by putting them in the constitution.”

He ignored the fact that while a convicted person could not stand for elections, one whose conduct has invited grave charges was free to do so. It is only persons against whom charges are actually framed by a court of law in respect of specified grave charges who should be disqualified. In law, charges of criminal offences are framed only if the court is satisfied that a prima facie case exists. The law cries for amendment on these lines.

On Dec 31 1948, Dr Ambedkar said that to be effective the law should require such a declaration at the end of the tenure as well, and a legal obligation to explain if the increase is “abnormal” enough to arouse suspicion. Failure to explain would be “an offence followed up by a penalty or by a fine”. Unfortunately, he not only refused to pursue this suggestion but ridiculed it.

“The whole thing is simply good for nothing, so to say. It might still be possible, notwithstanding this amendment, for the minister to arrange the transfer of his assets during the period in such a manner that nobody might be able to know what he has done. My submission, therefore, is that there is far greater sanction in the opinion and the authority of the house to enforce purity of administration, so as to nullify the necessity of having an outside legal sanction at all.”

Since public opinion is not as strong as he suspected and parliaments function on partisan lines, legislation is the only cure.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, July 5th, 2014