Rashi Bhatia
Mody University of Science and Technology, Rajasthan
“Law is experience developed by reason and applied continually to further experience”
-Roscoe Pound
INTRODUCTION
India is a vast and diverse country. The fact is that electoral politics is a playground for all Political parties and the pedestal of Political power is solely determined through it. Over the last four general elections, there has been an alarming enhance in the incidence of criminals in politics. The increasing trend in India of criminalization of politics threatens the law-making process and thus lawmakers should be on top of any kind of serious criminal allegation. The criminalization of politics means the entry of criminals into politics and contesting in the elections held for the seats in the Parliament and State legislative assemblies.[i]
In 2004, 24% of the Members of Parliament (MPs) had criminal cases pending against them. This number has increased to 43% of MPs in 2019.[ii] The recent report stated by the Association for Democratic Reforms has highlighted the urgency of the issue that 46% of Members of Parliament have criminal records includes minor offenses like “unlawful assembly” and “defamation”. The Present Lok Sabha MPs have the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.[iii]
The Apex Court directed to legislate parliamentary legislation to curb criminalization of politics may aid to deliver constitutional governance.
ORIGIN AND GROWTH OF CRIMINALISATION OF POLITICS IN INDIA
In 1975, 1st instance of “booth-capturing” occurred in India. Until late 1960, the re-election rates of incumbents were high. Goons got political favors for helping them win elections. As political competition included an element doubt of re-election of incumbent candidates leading to the entrance of criminals in politics to increase the rate control over their survival and protection. In 1969, Indira Gandhi banned corporate financing of elections which eliminated the most important legal source of finance. Simultaneously, the costs of contesting elections kept rising due to a growing population, increasing political competition further foremost to the increase in the number of political parties from 55 in the general election of 1952 rise to 464 in 2014 which brought the trend of giving freebies for votes. This led parties to a competitive search for underground financing, and they played into the hands of criminals and racketeers who had the means to acquire and arrange large amounts of cash without detection. The statistics from the last three general elections shows that the strategy was an electoral success as candidates with criminal cases were three times more likely to win than a “clean” candidate. In the 2014 election, 17% of 5,380 candidates contesting the Lok Sabha election are declared criminal charges in their affidavits submitted to the Election Commission of India; 10% have declared grave criminal charges like murder and rape charges.
FACTORS REQUIRED FOR CRIMINALISATION OF POLITICS
- Corruption-All parties without exception placed candidates with a criminal record up in each election. Even though some of us complain about the parties’ decision, the general trend is for these candidates to be elected to office.
- Purchasing of Vote Bank-The political parties and independent candidates have astronomical expenditure for vote-buying and other illegitimate purposes through these criminals or so-called ‘goondas’. A politician’s link with them constituency provides an amiable climate to political crime. The Majority of the voters are maneuverable, purchasable of Criminal Politicians.
- Denial of Justice and Rule of Law-Democracy in India is essentially a number game in which the parties that secure maximum votes get to the power. The truly speaking politicians, voters, political parties, law, and state machinery are all equally liable for this. This extends to accept the criminalization of politics as the fact of life which would be unjustifiable. The current law, only people who have been convicted at least on two counts be debarred from becoming candidates. This leaves the field open for charge-sheeted criminals, many of whom are habitual offenders or history full of records.
- Lack of governance-The root of the problem lies in the country’s poor governance capacity. On the one hand, India has extreme procedures that allow the bureaucracy to insert itself in the common life of people; on the other hand, it appears woefully understaffed to perform its most crucial functions.
Finally, it is true that the slow pace of the Indian judiciary system also elevates the Criminalisation of Politics.
LEGAL PROVISIONS MADE AGAINST CRIMINALISATION OF POLITICS
The Representation of People’s Act, 1951 provides the basic and innermost framework to deal with the criminalization of politics. Section 8[iv] defines that-
Sub-section (1):A person convicted of an offence punishable under certain acts of Indian Penal Code, Protection of Civil Rights Act 1955, Unlawful Activities (Prevention) Act 1967, Prevention of Corruption Act 1988, Prevention of Terrorism Act 2002 etc. shall be disqualified, where the convicted person is sentenced —
- With only fine or for six years from the date of such conviction;
- Imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Sub-section(2): A person convicted for the contravention of—(a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961.
Sub-section (3): A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Sub-section (4): Notwithstanding anything, in sub-section (1), sub-section (2) or sub-section (3) a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence until that appeal or application is disposed of by the court.
PRACTICABLE MEASURES TO CURB THIS TREND
- To bring greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.
- The ECI should have the power to audit the financial accounts of political parties, or political parties’ finances should be brought under the right to information (RTI) law.
- To wide governance which will help to improve for voters to reduce the dependence on criminal politicians.
- Special courts are necessary because politicians can delay the process of Judiciary and serve for decades before prosecution.
- The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts, and so on in their choice papers is a step in the right direction if it applied correctly.
ROLE OF SUPREME COURT IN CRIMINALISATION OF POLITICS
- In 2013, the issue of criminalizationof Politics was brought in the forefront of public discourse when the Supreme Court of India gave the Landmark Judgment in Lily Thomas v. Union of India[v]. In this case,the SC nullified Section 8(4) as unconstitutional and void. Used wisdom from Art. 102(1) (e) and 191(1) (e) of the Constitution. Under Article 102(1) (e) Parliament can make a law providing for circumstances whereby an MP shall stand disqualified from the membership of either house of the Parliament. Article 191(1)(e) says the same thing about MLAs.Although Parliament can make laws to “decide on disqualification”, it can’t “preserve and protect” its members who have been convicted for crimes.
In 2017, it asked the Centre to outline a scheme to appoint special courts to exclusively try cases against politicians, and for political parties to publicise pending criminal cases faced by their candidates in 2018.
In, Public Interest Foundation vs Union of India[vi] , SC directed political parties to publish online the pending criminal cases of their candidates.
The Court concluded that rapid criminalization of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” the political parties.It suggested that Parliament frame a law that makes it obligatory for political parties to remove leaders charged with “heinous and grievous” crimes like rape, murder and kidnapping and turn down ticket to offenders in both Parliamentary and Assembly polls.
CONCLUDING REMARKS
This fast deteriorating standard in Indian Politics is not a bright sign for Indian Democracy. The recent situation is that Indian Politics reaches a height where people find to obscure to distinguish between the honest public representative and dishonest conmen.The most important sacrifice at the altar of Criminalization is that of governance, along with transparency and accountability. Expensive election campaigning favors candidates with well-built financial background. Such candidates, when elected, seek to improve their expenses besides securing a corpus for the future election as quickly as possible, especially in the era of coalition governments with tenuous stability.
“Criminalization of Politics as the nexus between Politics and criminals and it is a threat to the survival of true democracy”.[vii]
[i] https://www.manifestias.com/2018/11/22/criminalization-of-politics/.
[ii] https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-order-on-criminalisation-of-politics.
[iii] https://www.drishtiias.com/daily-updates/daily-news-editorials/curbing-criminalisation-of-politics.
[iv] Section 8 of The Representation of People’s Act, 1951.
[v] (2013) 7 SCC 653.
[vi] 2018.
[vii] M.P. Jain, Indian Constitutional Law, LexisNexis, Gurugaon,2014, P.43.
