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Role Of Judiciary In Controlling Criminalization Of Politics

Criminalization of Politics means that the criminals entering the politics and contesting elections and even getting elected to the Parliament and state legislature. Criminalization of politics is the focus of public debate when discussion on electoral reforms takes place. A February 2020 Supreme Court judgement on Criminalization in politics may have far-reaching consequences for Indian democracy.

The judgment was passed in a contempt of court case filed against the Chief Election Commissioner of India. The petition claimed the ECI had failed to take any steps to ensure the implementation of a 2018 judgment of the bench, which had made it mandatory for political parties to declare and publish all criminal cases pending against their candidates.

The rising percentage of members of parliament who have a criminal background: 2004 - 24%, 2009 - 30%, 2014 - 34% and 2019 -43%. Around 50% of MPs in the new Lok Sabha have criminal records. This increasing number of members with criminal records in parliament endangers the survival of any true democracy.

Meaning of criminalisation of politics:

The criminalisation of politics implies the increasing involvement of criminals and individuals with criminal charges in Indian politics. In addition, this term means people coming from criminal backgrounds and becoming politicians and elected delegates. Furthermore, as per Section 8 of the Indian Representative of People Act, any individual imprisoned for a term of more than 2 years cannot file as a candidate in elections until 6 years of his release from jail. However, due to the prevailing criminalisation of politics in India, this provision is not effective in practical life.

Causes of Criminalization of Politics:

  • Success rate of Politician:
    Political parties give tickets to candidates on the basis of their ability to win. The chances of winning for a candidate with declared criminal cases in the Lok Sabha 2019 was 15.5 percent whereas for a candidate with a clean background, it was just 4.7 percent.
     
  • Use of Money and Muscle Power:
    Success in elections is largely dependent on the amount of funding it receives. Candidates with criminal records often have large hordes of cash that ensures their victory in elections. As per ADR website, in 2019 out of 539 candidates analysed, 43% have declared criminal cases against them.

    Out of the 542 MPs analyzed during Lok Sabha elections in 2014, 185 (34 percent) winners had declared criminal cases against themselves while during Lok Sabha elections in 2009, 30 percent had declared criminal cases against themselves. Hence there is a clear 44% increase in candidates with declared criminal cases against them.
     
  • Corruption and Red Tapism:
    corruption and red-tapism in the bureaucracy and government have led to the development of a nexus between bureaucrats, politicians, police officers, criminals, and the corporates. All these ultimately aid the people with a criminal background to enter politics.
     
  • Weak Rule of Law and Increasing Vote Bank Politics:
    Weak rule of law has reduced the belief of people on the police and bureaucracy.The social divisions on the basis of caste and religion etc., and the inability of authorities to act promptly in case of social tensions have reduced the faith of people on democratic institutions.This creates a breeding ground for the strongmen to gain popularity and hold on the people of their own community.
     
  • Lack of intra-party democracy:
    In India, there is a lack of intra-party democracy, and the top leadership takes the decision on the candidates contesting elections. Thus politicians with criminal records are able to escape the scrutiny of the ground level workers and organization of the party.
     
  • Poor Conviction Rate:
    In India, the level of conviction of MPs and MLAs with criminal records have been very low. Low level of convictions and the delays in the trials does not deter the political party to give tickets to candidates with a criminal background.
     
  • Toothless Election Commission:
    Election commission asks for the details of the property, cases pending in the courts, and educational qualifications from the candidates filing the nomination papers and also election expenditure of candidates.However, the candidates often give wrong details and the Election commission is unable to take any action against them.

Impacts of criminalization of politics:

  • Negative Impacts on the Quality of Democracy:
    Presence of legislatures with criminal background negatively impacts the lawmaking power of Parliament and state legislatures. It is like a dent on democracy and negatively impacts the quality of democracy.
     
  • Obstructing the Process of Justice Delivery:
    The criminalization of politics obstructs the process of justice and causes delays in trials. Criminals after getting into the position of power misuse it for or getting away with their crimes and offences.
     
  • Increases Corruption:
    The criminalization of politics increases corruption in public life, creates a nexus of criminal, politician, and bureaucracy. All these have negative impacts on the state institutions such as the legislature, executive and the judiciary.
     
  • Violence in Society:
    It leads to a culture of violence in society. For example, the level of political violence in West Bengal has created bad precedence for the youth of the state.
     
  • Illegal Money Flow into the Electoral Process:
    The criminalization of politics promotes the flow of illegal money into the electoral process and negatively impacts the security of the people and the nation.

Role Of Judiciary In Controlling Criminalization Of Politics:

From time to time, the Honorable Supreme Court has taken steps to curb India's increasing criminalization of politics. Various judgments, views, and decisions have been put forward in this regard. But despite this, nothing significant has happened. The Apex Court rightly pointed out in its statement and most of us would indefinitely agree to the statement:

"No one can deny that the menace of criminalization in the Indian political system is growing day by day. Also, no one can deny that for maintaining the purity of the political system, persons with criminal antecedents and who are involved in the criminalization of the political system should not be permitted to be lawmakers."

In August 2021, the bench of Justices Rohinton Fali Nariman and B.R. Gavai from the Hon'ble Supreme Court expressed their anguish over the criminalization of politics. The Hon'ble Court observed the following:

"The political parties refuse to wake up from deep slumber. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government."

The Supreme Court ordered the political parties in its February 2020 contempt petition to comply with its judgment of Public Interest Foundation and Ors. vs. Union of India and Anr. (2018). However, the orders of the decision were not followed by the various political parties. The court observed that the Bharatiya Janata Party (BJP), the Janata Dal (United), the Rashtriya Janata Dal (RJD), and the Congress were guilty of contempt because they did not comply with the orders of the Hon'ble Supreme Court.

It imposed a fine of 1 lakh for not disclosing the complete details of criminal antecedents of candidates in the Bihar elections in 2020. Apart from this, the Communist Party of India and the National Congress Party were asked to deposit five lakhs each because they did not comply with the orders of the Hon'ble Supreme Court at all.

The present August 2021 contempt petition was filed by Advocate Brajesh Singh, who alleged that the various political parties did not obey the court's orders during the Bihar assembly elections in 2020. After taking the contentions and arguments put forward, the Bench noted that most political parties have either not given full disclosure or have not followed the format it was to be delivered.

In its latest judgment, the following were the orders and amendments made by the bench in its previous ruling in the year 2020:

ECI has been directed to create a mobile application that contains all the information about the criminal antecedents of the candidates so that the general public can have access to information conveniently.ECI has been directed to create a separate monitoring cell for checking whether the parties are complying with the court's order or not. It has also referred them to bring such instances of the breach to the knowledge of the court.

The Hon'ble Supreme Court directed the political parties to set up a new tab on their homepage of websites named 'candidates with criminal antecedents' to make it easier for voters to know more information. The court has modified its earlier order of February 2020, directing parties to publish details within 48 hours of selection and not two weeks before nomination. It also observed that a unique bench at the Supreme Court might be formed to monitor the cases involving accused MPs and MLAs.

Further, the issue was taken into cognizance mainly of two separate cases of criminalization in Indian politics.

The Hon'ble Supreme Court observed that the state governments could not withdraw the cases against legislators without the permission of respective state high courts.Parties punished: Nine parties were held guilty of contempt for not disclosing complete details in Bihar 2020 elections. Further, eight of them were also fined with heavy penalties.

In 1997, high courts were directed by the Honorable Supreme Court not to suspend the conviction if that person is found convicted under the Prevention of Corruption Act, 1988.

In the case of Ramesh Dalal vs. Union of India (2005), the Hon'ble Supreme Court pronounced that a sitting member of Parliament and a member of the state legislature can also be disqualified from contesting elections if he is convicted for not less than two years for imprisonment by the court of law.

Furthermore, it was observed in K Prabhakaran vs. P Jayarajan (2005) that:
"Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal backgrounds from entering politics and the house - a powerful wing of governance. Persons with a criminal background do pollute the process of election as they do not have many holds barred and have no reservation from indulging in criminality to win success at an election".

Public Interest Litigation (PIL) was filed in the Supreme Court in 2011, seeking to issue guidelines and lay framework to be followed to curb the menace of criminalization of politics and debar those charged with a crime from contesting elections.

Section 8(4) of the Representation of the People Act, 1951 provided a respite to a member of Parliament or a member of the legislative assembly/legislative council. If the convicted member filed an appeal within three months, then that application was accepted by the Hon'ble Supreme Court.

This implied that the member could continue his membership of the concerned legislature until the court disposed of the application. The court struck down this provision in the case of Lily Thomas vs. Union of India (2013). At present, a member of Parliament or member of state legislature stands disqualified if they are convicted of an offence provided in Section 8(1) or 8(2) of the Representation of People Act, 1951. Also, a person remains disqualified from holding a seat after six years of release. Section 8(4) was held unconstitutional since Parliament's work is to make disqualification laws and not secure the seats for membership.

The Hon'ble Supreme Court held in People's Union for Civil Liberties vs. Union of India (2018) that the voter has the fundamental right under Article 19(1)(a) of the Indian Constitution to know about the candidates who are contesting the election.

In the year 2020, the Hon'ble Supreme Court reiterated its 2018 order. The main aim is to discourage candidates with criminal backgrounds from contesting elections. Political parties should explain why they have chosen a candidate with a criminal background. The candidate selection must be based on merit, not on winnability, the Supreme Court observed. The information must be published on social media platforms, local and national newspapers, and the website.

The same information needs to be submitted to the election commission within 72 hours after declaring the candidate's name. A compliance report must be filed with the Election Commission or should be ready to face contempt action. It is an undeniable fact that electoral and judicial reforms are the need of the hour.

Current Verdict of Supreme Court:
The Supreme Court (SC) has ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that forced them to field suspected criminals. The order was a reply to the contempt petition about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India) to publish the criminal details of their candidates in their respective websites and print as well as electronic media for public awareness. The SC passed an order while exercising powers under Articles 129 and 142 of the Constitution which deals with the contempt power of the Supreme Court and enforcement of its decrees and orders.

Highlights of the Order:
  • It is mandatory for political parties (at the Central and State election level) to upload on their website detailed information regarding individuals with pending criminal cases.
  • It shall also include the nature of their offences, charges framed against them, the court concerned, case number, etc.
  • Additionally, the political parties need to offer an explanation as to why candidates with pending criminal cases are selected as candidates in the first place.
  • Thus the candidate s mere winnability at the polls ' shall not be the sole reason for handing over a ticket to the candidate to contest elections.
  • The above information needs to be published in a local as well as a national newspaper as well as the parties ' social media handles.
  • The information mandatorily to be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
  • The political parties need to submit compliance reports with the Election Commission of India within 72 hours.
  • If a political party fails to submit then the Election Commission shall bring such non compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Courts orders/directions.

Significance of the Order:

  • Over the last four general elections, there has been an alarming increase in the incidence of criminals in politics. The increasing criminalization of politics threatens the law making process and thus lawmakers should be above any kind of serious criminal allegation.
     
  • 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
     
  • The direction of SC to legislate parliamentary legislation to curb criminalization of politics may help to deliver constitutional governance.

What is the way out?
There are three possible options.One, political parties should themselves refuse tickets to the tainted. Two, the RP Act should be amended to debar persons against whom cases of a heinous nature are pending from contesting elections. Three, fast track courts should decide the cases of tainted legislators quickly.

Landmark Judgments Pertaining To Criminalization Of Politics:

The Supreme Court has taken a timely decision by agreeing to hear a plea from the Election Commission of India (ECI) to direct political parties to not field candidates with criminal antecedents. The immediate provocation is the finding that 46% of Members of Parliament have criminal records.

While the number might be inflated as many politicians tend to be charged with relatively minor offences - "unlawful assembly" and "defamation" - the real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.

The Supreme Court has come up with a series of landmark judgments on addressing this issue. It removed the statutory protection of convicted legislators from immediate disqualification in 2013, and in 2014, directed the completion of trials involving elected representatives within a year. In 2017, it asked the Centre to frame a scheme to appoint special courts to exclusively try cases against politicians, and for political parties to publicize pending criminal cases faced by their candidates in 2018. But these have not been a deterrent to legislators with dubious credentials.

Perhaps what would do the trick is a rule that disallows candidates against whom charges have been framed in court for serious offences, but this is something for Parliament to consider as an amendment to the Representation of the People Act, 1951. This denouement, however, is still a pie in the sky given the composition of the Lower House with a number of representatives facing serious cases.

RPA Criminalization of politics:

Currently, under the Representation of Peoples (RP) Act, lawmakers cannot contest elections only after their conviction in a criminal case. Section 8 of the Representation of the People (RP) Act, 1951 disqualifies a person convicted with a sentence of two years or more from contesting elections. But those under trial continued to be eligible to contest elections. The Lily Thomas case (2013), however, ended this unfair advantage.

Challenges:
Election Commission has limited powers to legislate on such laws. Public opinion too is not firm on the issue. A survey found that opinion was divided when people were asked whether they would vote for an honest candidate who may not get their work done, or a tainted candidate who could get their work done. While political parties raise concern about candidates with a tainted background contesting elections, none of them come forward to set an example for others when it is time to act.

In the present criminal justice system, it takes years, probably decades, to complete the trial against a politician. Those with political influence have taken full advantage by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions to stall any progress. They also engage in corruption and infect the bureaucracy and the police.

Way Forward:
Law panel report bats for using the time of the framing of charges to initiate disqualification as an appropriate measure to curb the criminalization of politics. Political parties should themselves refuse tickets to the tainted. The RPA Act should be amended to debar persons against whom cases of a heinous nature are pending from contesting elections. Bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.

The Election Commission of India (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.

Broader governance will have to improve for voters to reduce the reliance on criminal politicians. Fast-track courts are necessary because politicians are able to delay the judicial process and serve for decades before prosecution. The Election Commission must take adequate measures to break the nexus between the criminals and the politicians.

The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts and so on in their nomination papers is a step in the right direction if it applied properly. Addressing the entire value chain of the electoral system will be the key to solving the puzzle of minimizing criminal elements from getting elected to our legislatures.

This process would involve sensitizing the electorate about the role and responsibility of the elected representatives. Political parties will have to be encouraged to have stronger inner party democracy to attract this new set of leaders to join the party. And finally, our judicial system will have to be overhauled drastically to ensure that justice is dispensed swiftly in all cases.

References:
  1. Aiyar, S.P. and Srinivasan, R., Studies in Indian Democracy, Allied Publishers, Bombay, 1965.
  2. Banerji, Dilip, Election Recorder, Book Front Publishing Forum, Calcutta, 1990.
  3. Bhargava, G.S., 'Seshan's Shadow Over Election Commission? The Hindustan Times, February 27, 1998.
  4. Chandidas, R., et al. (eds.), Indian Votes: A Source Book of Indian Elections, Popular Publishing House, Bombay, 1968.
  5. Dixit, J.N., 'Preserving the Repuublic: No. Alternative to Electoral Reforms', The Indian Express, July, 12 1994.Ganguly, Bangendu and Ganguly, Mira, Voting Behaviour in a Developing Society, Sterling, New Delhi, 1975.
  6. Jain, Kiran and Jain, P.C., Chawla's Elections: Law and Practice, Bahri Brothers, New Delhi, 1998.
  7. Krishnamurthy, T.S., The Miracle of Democracy: India's Amazing Journey, Harper Collins, New Delhi, 2008.
  8. S.K. Khanna, Contemporary Indian Politics, Discovering Publishers House, New Delhi, 1999.
  9. https://timesofindia.indiatimes.com/readersblog/hail-to-feminism/criminalisation-of-politics-24324
  10. https://www.thehindu.com/opinion/lead/criminality-in-the-indian-political-system/article5372634.ece
  11. https://www.hindustantimes.com/india-news/nation-losing-patience-sc-on-criminalisation-of-politics-101628620583327.html
  12. https://indianexpress.com/article/opinion/columns/criminalisation-of-politics-must-be-curbed-7451116/

Written By: Shaikh Moeen Naeem
(Dept. Of Political Science) - Dr. A. G. D. Bendale Women's College, Jalgaon, M. S.

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