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Decriminalisation of Politics in India

Criminalization of politics is a vital topic to be discussed in any democratic platform. This issue is on focus every now and then. The Government and the governance system’s credibility is questioned. Sometimes the government loses its legitimacy and authenticity due to the involvement of persons with criminal backgrounds. The frequency with which alleged or convicted criminals manage to gain public office threatens the ideals and the functioning of the Indian democracy. The members of the legislature are expected and directed to represent vicariously the aspirations and concerns of the people whom they represent. Hence it is important for the legislature of a representative democracy to be a true reflection of the aspirations and dreams of the people and also to be fair, honest and accountable to the people they represent. But nowadays India is witnessing a crisis of empathy, quality, fairness, equality etc. amongst all the chosen MPs or MLAs. We have allowed criminalisation in politics to go completely unchecked. The numbers are appalling. In the Lok Sabha, 139 of the 539 members elected in 2019 had been charged with serious criminal offences such as murder, rape and dacoity. This paper discusses about the meaning of criminalisation of politics, reasons for criminalisation, consequences of criminalisation and the role of legislations and judiciary in decriminalisation of politics in India.


KEYWORDS: Criminalisation, Decriminalisation, Politics, Legislations and Judiciary.



Introduction


Apart from terrorism, the most serious problem being faced by the Indian democracy is criminalization of politics. At times, the concern has been expressed against this obnoxious cancerous growth proving lethal to electoral politics in the country. Purity and sanctity of electoral process, sin qua non for a sound system of governance appears to have become a forgotten thing in view of the entry of a large number of criminals in the supreme legislative bodies at central and state level. Sri G.V.C Krishnamurthy, the election commissioner (as he then was) has pointed out that almost forty members facing criminal charges were the members of the Eleventh Lok Sabha and seven hundred members of similar background were in the state legislatures.


Criminalization of politics has greatly vitiated the socio-political fabric of our country. Elections in the world’s largest democracy have been attracting an ever-larger number of criminal elements and this trend is discernible across all political parties. It is ironical that while Indian citizens have the power to change their government democratically, they have not been able to stem the criminalization of politics and the consequent erosion of civil liberties. Despite all the agitation of the civil society over this issue, political parties tend to succumb to the temptation of enlisting the support of criminal elements and accord primacy to their “winnability” factor and electoral clout.


Even the political parties out of the glamour of political power and consequent benefits do not hesitate in giving tickets to the criminals and do not object to their use in winning the elections. Thus, politicization of criminals needs to be checked by all means at disposal.



Criminalisation of Politics


Man, as selfish by nature inclined towards competition to have power. Gradually it led to cut throat competition amongst vested interests in power struggle. This turned existing political system into a hotbed which gave rise to political rivalry. To achieve their goal in this power, struggle the politicians indulged in various criminal activities. The criminals help politicians in various ways. As a candidate, they win the seat. The intimidation of voters, proxy voting, booth capturing are the devices which are carried on by them. The use of money or muscle power and the totally unacceptable practices offend the very foundations of our socio-economic order. In the past, though criminals usually worked behind the scene but now apart from extending indirect help contest the elections and also become ministers. As per the statistics collected by Association of Democratic Rights and National Election Watch resourced from records of Election Commission of India, the horrible position of criminals in the present-day political system (2009-2019) is depicted below.


1. The total numbers of M. P. s and M. L. A. s from different political parties is 4,807, out of which 1,460(30%) and 688(14%) are involved in serious offences. They are believed to be hardened criminals and “history-sheeters” (those whose history of crimes is recorded in police stations for quick reference when any crime takes place) facing charges of murder, rape and armed robbery.


2. Out of total 543 M. P. s of Lok Sabha 162(30%) have criminal records and 75 (14%) are involved in serious crime. Out of total 4032 numbers of M. L. A. s in the country 1258(31%) have criminal records since the time of their nomination for election and 15% are involved in serious criminal cases.


3. Out of the 58 candidates for 2014 Rajya Sabha Election in February (for 16 states) whose self-sworn information in their affidavits have been analysed, 14 candidates (24%) have declared criminal cases against them. Out of the 14 candidates who have declared criminal cases, 2 have declared serious criminal cases. These include charges of murder, kidnapping and crime against women. Shiv Sena candidate, Dhoot Rajkumar Nandlal from Maharashtra had declared charges of murder, kidnapping and crime against woman[1].


4. Winners with Declared Criminal Cases Out of the 539 Winners analysed in Lok Sabha

2019, 233 (43%) Winners have declared criminal cases against themselves. Out of 542 Winners analysed during Lok Sabha elections in 2014, 185(34%) Winners had declared criminal cases against themselves. Out of 543 Winners analysed during Lok Sabha elections in 2009, 162 (30%) Winners had declared criminal cases against themselves. There is an increase of 44% in the number of MPs with declared. Winners with Serious Criminal Cases: 159 (29%) Winners in Lok Sabha 2019 Elections have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc. Out of 542 Winners analysed during Lok Sabha elections in 2014, 112(21%) Winners had declared serious criminal cases against themselves. Out of 543 Winners analysed during Lok Sabha elections in 2009, 76(14%) Winners had declared serious criminal cases against themselves.


5. There is an increase of 109% in the number of MPs with declared serious criminal cases in 2019.


Almost all legislators are, however, believed to be engaged in some kind of corruption. In fact, a legislator routinely embarks on his legislative career by signing a false affidavit claiming to have spent much less money on his election than he has actually done.

It is only natural that, they would want to make at least 10 times of money backed during their five years in parliament. This, indeed, is the source of the criminalization of Indian polity”. As an honest politician one can no longer think of entering into the election fray. Businessmen and industrial houses, too, would not support an honest person as he (or an occasional she) would be useless for them once in parliament. In fact, he may even become an obstruction for them.



Consequences


The major impact is that the law-breakers get elected as law-makers. According to Election Commission, about 40% of members elected to Lok Sabha are facing criminal charges in court of law. This makes the Parliament less efficient in enacting necessary laws for the effective administration of country. The Parliament loses its credibility and the Council of Ministers loses its legitimacy to administer the country. Political patronage and a ‘culture of adjournment’ collude to prevent speedy trials against elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for an accused elected representative. It also leads to increased circulation of unaccounted money or black money during and after elections, diluting the probity in public life. The increased levels of corruption in public life weakens the state institutions including the bureaucracy, the executive, the legislature and the judiciary. Further, it introduces a culture of violence in the society and sets a bad precedence for the youth to follow.



Legislative measures to prevent criminalisation of politics


Chapter IX A of Indian Penal Code deals with offences relating to elections. It comprises of nine sections. It defines and provides punishment for offences, such as bribery, undue influence and personation at elections[2] etc. The maximum punishment for the offence of bribery is one year’s imprisonment of either description or fine or both but bribery by treating is punishable only with fine. Similarly, the maximum punishment for undue influence or personation at an election is one year’s imprisonment of either description or fine or both[3]. Sec. 171 G provides the punishment of fine for false statement in connection with elections and for illegal payment in connection with an election. Sec 171 H provides the punishment of fine up to Rs.500. According to Sec 171 E, if there is failure to keep election accounts, the offender shall be punished with fine not exceeding Rs.500. Thus, in IPC, provisions have been made to check election evils but nominal punishments have been provided and interest is not taken in prosecution of election offenders. These provisions have failed to check criminalization of politics.


Sec. 8 of the Representation of People Act, 1951 appears more deterrent as it provides disqualification on conviction of certain offences. Sec. 8(1) provides that a person convicted of an offence specified therein and sentenced to imprisonment for not less than six months shall be disqualified from the date of such conviction. S. 8(2) provides that a person convicted for the contravention of certain law mentioned in it[4] and sentenced to imprisonment for not less than six months 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.


However, the disqualification under sub-sections (1), (2) and (3) shall not take effect in case of a person who on the date of the conviction is a member of parliament or state legislature 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 by the court[5].


Sec. 8(4) of the Representation of People Act, accords benefit to a sitting Member of Parliament or legislative assembly if convicted for criminal offence. According to it, in respect of such member, no disqualification shall take effect until three months have elapsed from the date of conviction or if within that period appeal or application for revision is brought in respect of conviction or sentence until that appeal or application is disposed of by the court. The controversial issue is whether the benefit of this provision continues even after the dissolution of the house. There have been instances where the members taking advantage of this provision contested the subsequent election in spite of the faction by the court during the tenure of the house. The Supreme Court considered this unethical aspect also in Prabhakaran case[6]. The court considered the structural position of S. 8(4) and justifications for its retention. It held that “Subsection 4 would cease to apply no sooner the house is dissolved or the person has ceased to be a member of that house.”


Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the house a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a hold barred and have no reservation from indulging into criminality to win success at an election.

Election Commission’s Measures And Recommendations


Election Commission of India has consistently undertaken certain electoral reforms which it could take on its own as well as at the direction of Supreme Court. In 1997, Election Commission directed all the Returning Officers (ROs) to reject the nomination papers of any candidate who stands convicted on the day of filing the nomination papers even if his sentence is suspended. Election Commission has also made the following recommendations to the Union Government to be made into law in the form of electoral reforms for the decriminalization of politics: –


• If a person is accused of a serious crime (that is, where the law prescribes a punishment of not less than 5 years for the alleged crime) and if a court of law has framed criminal charges against the accused, then it shall be regarded as a reasonable ground for the disqualification of accused from contesting elections. The Election Commission is of the opinion that framing the criminal charges by a court means that the court prima facie believes that the accused might have been involved in the alleged crime.


• If a person is found guilty by a Commission of Inquiry then he shall be disqualified from contesting elections.


• The FPTP electoral system shall be replaced by the 2-ballot system under which a candidate is declared elected from a territorial constituency on the basis of majority principle. In a multi-cornered contest if no candidate attains more than 50% of valid votes polled, then the 2 candidates who obtained the largest number of valid votes polled alone shall be allowed to contest the next round of elections. This system would make it difficult for a criminal to get elected.


• Right to recall – It confers the power on the registered voters in a constituency to recall their elected representatives from the house on the ground of non-performance. It could empower the people at grassroot level. The elected representative could be made truly accountable to the people. In such scenario, political parties will be forced to nominate eligible and desirable candidates to contest elections because of the fear of removal of elected representative. However, for such system to work high level of political maturity is required on the part of voters.


• State funding of elections – It means government extending financial assistance to the political parties to contest elections in part or in full, in kind or in cash. The objective could be to control or eliminate the outside pressure over government policies and functioning by vested interests by funding political parties and candidates during elections. It could help in controlling the flow of unaccounted money and muscle power of criminals during elections and corruption in public life.



References

· Volume 1, Durga Das Basu, Commentary on the Constitution of India, 9th Edition, Lexis Nexis, New Delhi.

· Volume 1, M P Jain, Indian Constitutional Law, 6th Edition 2010, Lexis Nexis, New Delhi.

· Dr. V. N. Shukla, The Constitution of India, Fifth Edition, 1969, Eastern Book Company, Lucknow.

· VS RANA DEVI & S K Mendiratta, How India Votes Election Laws, Practice and Procedure, Fourth Edition,2017.

· Kapur B R. V State of T.N. AIR 2001 SC 3435; see also Dr. Mrs Kiran Jain and Jain, Chawla’s P C Elections: Law and Practice, XXXV, 7th Edition, 1999, reprint 2002.

· Dhirendra Kumar Jena. Judiciary: A Check to Criminalization inIndian Politics, International Journal of Social Science and Humanities Research, 2(4), 2014, 325-332.

· The Demand for Criminal Politicians, M Vaishnav. Oxford India Policy Series, Special Series: Decriminalisation of Indian Politics, May 2013.

· Criminalization of politics and electoral reform in India, George T. Haokip, The International Journal of Social Sciences Research ISSN2320-5113 April 2013: V 1No 4.

· M. V. Rajeev Gowda and E. Sridharan. Election Law Journal: Rules, Politics, and Policy. June 2012, 11(2): 226-240. doi:10.1089/elj.2011.0131.

· Electoral Reforms: Need for Citizen Involvement, J.S. Chhokar, Economic and Political Weekly Oct 20, 2001.

· Association for Democratic Reforms (ADR) database: http://www.adrindia.org and http://www.myneta.info.


Endnotes:

1]Report of Association of Democratic Rights and National Election Watch. [2] These three offences have been defined by SS 171B, 171C and 171D, IPC respectively. [3] Ss. 171E, 171F and 171G, IPC, 1860. [4] (a) Any Law Providing for the Prevention of the Hoarding or Profiteering.(b) Any Law Relating to the Adulteration of Foods or Drugs.(c) Any Provisions of the Dowry Prohibition Act, 1961.(d) Any Provisions of the Commission of Sati (Prevention) Act, 1987. [5] S.8 (4). RPA. [6] Prabhakaran V P, Jayarajan. AIR 2006 Mad. 17.



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Author Details: KARAN CHOUDHARY (2nd year student at National University of Study and Research in Law, Ranchi)

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