A legislature has the benign anxiety to protect the society from the onslaught of criminals and thereby they command strict penal laws and empower police to detain a person even on first information of offence, (section 154, 157 read with section 41 of CrPC 1973) and even provide for refusal of bail in appropriate cases thereby frustrating the free movement of a innocent person or putting restraint on movement of alleged criminals when released on bail. However, this benign anxiety presupposes clean hands of the legislature, for no benign anxiety can emanate from alleged criminal legislature.
In a democracy, the legislatures enact laws with the mandate of citizens. Whenever the legislature provides that in a given situation, the liberty of the subject will be compromised, the subject invariably agrees to sacrifice his most precious individual freedom in the interest of welfare of the society. This voluntary sacrifice of precious freedom by an arrested person, to protect society from criminals, is on the premise that at least legislature who is making this phenomenal command, is not a criminal, in a natural expectation, that this command is originating from a man of standing and integrity.
Moreover, when I vote to a electoral candidate, though criminally charged, I vote him in the presumption of his innocence. But, then, his innocence must, as immediately as possible, be obtained from the competent court of jurisdiction, within three months from the date when the said candidate files his candidature to be elected as a legislature of the people.
And, therefore, so as to have purity of have legislative command clothed in section 154, 157 read with section 41 of CrPC, 1973, there cannot be a criminally charged legislature in the “office” and therefore whenever we have a legislature who is suffering from “the charge”, he must be relieved of the “charge”, either of crime or of legislative office, at once, by the competent court of jurisdiction. Needless to say, only specially constituted CBI courts will serve the purpose.
Definitely, all the legislature wants to protect the society from criminals, but imagine a situation of life In India where – an alleged criminal legislature makes a command – I want to protect the society from criminals.
It is interesting to observe that – a Legislature and a Criminal are a inherently “incompatible personalities”. A Legislature makes the law, whereas a criminal personality breaks the law. But here in India we are surprised to have these personalities.
Finally, the alleged criminal has a right of “first hearing”, so that he can be relieved of the criminal charge, at the earliest. Also, there should be a “Doordarshan public trial” of a alleged criminal legislature so that the opposite political parties will not have the opportunity of alleging “managed trial”.