This article has been authored by Sanighdha S, a third year student at University Institute of Legal Studies, Panjab University, Chandigarh.
“Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
The Founding Fathers of our great nation invariably thought of shaping India as a nation to be influenced and imbibed by democratic practices as well as our much cherished value system, that the idea of a highly debased and debauched political apparatus never crossed their reflective minds. Defined as the art or science of government, politics is the single most quintessential integrant of a democracy. “Good Government is Good Politics and Politics is Good Government”- said Richard J.Dailey. But what if the politics that shapes our very own government is in a condition so pitiable and regretful that, the voters have to unwillingly elect criminals to the ‘Seats of Power’? Undeniably, it’s high time now that ‘WE, The People’ step up and save our beloved nation from a looming ruination.
Criminalisation of politics refers to criminals entering into politics and using the political power so won in their favour for personal gains, while abusing the democratic system of the country.
The data provided by Association for Democratic Reforms surprisingly reveals that 43% of the newly elected Lok Sabha Members of Parliament in 2019 had a criminal record. The same Report highlighted that from 2014 to 2019, there was a 26% stupendous rise in Members of Parliament having criminal records registered in their names. A politician is said to have a criminal charge against him if for the offence so committed, the punishment is 5 years or more; or it’s an electoral offence (such as bribery); or any of the offences listed in Indian Penal Code, 1860; or offences mentioned under the Representation of People’s Act, 1951 and/or the Prevention of Corruption Act, 1988.
In 2019, almost 29% of the politicians had serious criminal cases registered against them, which is in itself a serious question on the very structure of our democratic system. The chances of winning for a candidate with declared criminal cases in Lok Sabha (2019) were 15.5%; whereas for a candidate with a clean background, it was just 4.7%.
Not just in India but, criminalisation of politics is also a buzzword in the United States. The recent impeachment proceedings of President Trump are but, a mere exemplar. The various sexual allegations imputed on him, clearly depict that the criminal mind-set has totally engulfed the democratic political system in the United States of America. The infamous Watergate Scandal during the then President Nixon’s time was another bitter show of criminal politics. It is an irony that the world’s two greatest democracies have somehow lagged behind in tackling with the virus of criminal politicians, which ails their respective nations, and has the capability of hollowing it from inside like a wretched leech.
There is no dearth of legal provisions to deal with candidates having a past criminal record. The only sphere where our governance is having a lackadaisical approach is with regards to the implementation of the set laws and rules of the land.
Rule 4A of the Conduct of Election Rules (1961) mandates that each candidate contesting the elections must file a sworn affidavit regarding the cases in which, he has been accused of an offence that is punishable with an imprisonment for two years or more. Additionally, the candidate has to mention any of the offences for which he has been convicted with an imprisonment of one year or more, other than those mentioned under Section 8 of the Representation of People’s Act (1951).
However, a candidate must file an additional affidavit under Section 125A of the Representation of People’s Act (1951) if, some information has been withheld or provided incorrect in Form 26 as filled up by him. Section 8 of the Representation of People’s Act (1951explains the various grounds that make a candidate eligible for disqualification from the election process. These include offences committed under the Protection of Civil Rights Act (1955), Foreign Exchange Regulation Act (1973), Prevention of Corruption Act (1988), Prevention of Terrorism Act (2002) and certain provisions of the Indian Penal Code (1860).
While the list of offences committed for which a member may be disqualified from contesting elections is exhaustive, the same should be made a bit more flexible for accommodating new-age offences such as spreading fake news, unethical hacking and cyber warfare. The growth of scientific and cyber technologies mandate a proactive and targeted approach to deal with the misuse of the same in the election process.
The Law Commission in its 244th Report on electoral reforms titled “Electoral Disqualifications” has recommended expediting trials in relevant courts where cases have been filed against a sitting Member of Parliament (MP)/ Member of Legislative Assembly (MLA) with the trial being conducted on a day-to-day basis. It also suggested disqualification of a candidate by such court, to have a retrospective application. The rationale behind the same is to weed out unwanted and corrupt criminal politicians from our democracy and to prevent them from looting the trust as well as the hard earned money of the citizens.
However on the other hand, the right to contest elections which is so primal to our democratic process, cannot be extinguished without gauging the reliability of the complaint so filed. For a more regulated apparatus, preliminary inquiry can be conducted and a more comprehensive incorporation of the Supreme Court guidelines given in Lalitha Kumari v State of Uttar Pradesh judgment can be considered. The Supreme Court in this particular judgment opined that the registration of FIR is mandatory on information of a cognizable offence, however arrest is not compulsory on such registration. Further, the Honourable Court said that if no cognizable offence is disclosed but necessity for a preliminary inquiry rises on the basis of facts and circumstances of the case; such inquiry must be carried out in a time bound manner-so as not to cripple the criminal justice system. These guidelines when followed while carrying out the investigation in cases involving politicians, will ensure safety of an innocent and due punishment for the culprit-without unnecessarily harming the reputation of such public servant. The punishment for filing of false affidavit was proposed to be increased to two years.
The intricate inter connection between Section 125A and Section 8(1) of the Representation of People’s Act (1951) was proposed to enlarge the sphere of disqualification for failing candidates. Additionally, filing of false affidavit was suggested to be recognised as a corrupt practice under Section 123 of the Representation of People’s Act (1951). The Election Commission in its Proposed Electoral Reforms (2016) and the 2nd Administrative Reforms Commission also suggested some major overhauls in the whole process to make politics free of criminals.
In Union of India v Association for Democratic Reforms (2002), the Supreme Court for the first time made it mandatory for the contesting candidates of Parliament, State Legislature or Municipal Corporation elections to declare their criminal, financial and educational records. The same was upheld in the case of Krishnamurthy v Sivakumar& Ors (2015).
In Ramesh Dalal v Union of India (2005), the Apex Court mandated for disqualification of a sitting MP/MLA if convicted for an offence having an imprisonment of two years or more.
In Lily Thomas v Union of India (2013), the Supreme Court held Section 8(4) of the Representation of People’s Act (1951) unconstitutional as it allowed a convicted MP/MLA to continue in office till an appeal against such conviction was disposed off. However in 2017, the Central Government notified that convicted MP/MLAs won’t stand disqualified at once, and will have a chance to appeal thus allowing him/her to continue till appeal is sub judice. The particular stand taken by the Central Government can be tossed both ways. It is the political parties that have to look into the misdeeds of their sponsored candidates and provide a better insight to the public regarding their political choices.
In Public Interest Foundation & Ors. v. Union of India (2018), the Apex Court passed the following guidelines:
i. While filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters.
ii. Political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites.
iii. Candidate and the concerned political party will have to issue a declaration in widely circulated newspapers in the locality and in electronic media about his or her criminal antecedents.
iv. Parliament must legislate on the matter to ensure that candidates with criminal antecedents do not enter public life or become lawmakers.
Recently, in Rambabu Singh Thakur v Sunil Arora & Ors.(2018), a Division Bench of the Supreme Court has recorded its displeasure over the non-compliance of the aforementioned guidelines. It reiterated the abovementioned guidelines while expressing its infuriation over no action or follow-up by the political parties with respect to the same.
Issues and Challenges
Even after repeated Supreme Court guidelines, the Parliament has not stepped up and formed a concrete law against criminal politicians. This shows lack of political will to tackle the growing menace. Amending the RoP Act (1951) is upon the Parliament and successive Supreme Court directions can only act as a guiding light in the matter. The dearth of common understanding within the political circles ails the political system of this nation. Lack of effective implementation and narrow self interests are responsible for imprisoning our hard-fought democratic rights within its accursed arms. The use of muscle and money power in the electoral process has asphyxiated the principles of good governance, integrity of honest public servants, societal imbalance and the very essence of free and fair elections. Determinatively, all of this has landed us in a vicious cycle of electing the undeserving contestants.
On the part of the political parties, they must consider refusing tickets to tainted candidates. An internal system of accountability and transparency must be established and encouraged, along with debarring candidates who are found to be guilty. Broader awareness programmes can be started to educate the citizens, regarding the candidates they are about to vote for. A strict check must be kept on the party candidates by the Whip itself, and an immediate communication of any sort of discrepancy must be informed to the Party Head. A direct transparent channel must be formed between the ECI, the Party Heads and the Whips; though which they can share such sensitive information and act upon the same instantly.
The information regime via the RTI can be strengthened so as to assure the voters regarding the rights they possess-which undoubtedly includes the Right to Know about the criminal antecedents of the candidates. A cue can be taken from the Italian Government on its tackling of the politician-mafia connection. What has helped the Italian government is the stringent enforcement of legislations and a coordinated effort on behalf of the politicians, police and other law enforcement agencies. Likewise, India needs a collective conscience to deal with the problem at hand and unstain the chaotic politics with an upright democratic apparatus.
State funding of elections and behavioural change in the political mind set of this nation is the way forward for our democracy. Strengthening of election commission so as to give it more power and authority for punishing the convicted as well as accused candidates will help in a more tightened and regulated election process. The timely completion of cases filed in Special Tribunals set up for trying criminal politicians, must be achieved in a targeted manner. Elections are the Carnival of Democracy To conduct them in way which justifies their inevitability and indispensability is truly, the real spirit of a democratic system.