22 Nov 2018

Criminalization of politics

Manifest Pedagogy

CRIMINALIASATION of politics should be studied as part of Electoral reforms topic. Electoral reforms is one broad issue in Polity which has static dimension(reforms during and after independence) and current dimensions which may run in the news till the point of your exam. The best answer which can fetch maximum marks must include static dimensions of a particular topic which is in news like the history of criminalization in India to answer questions like special courts which is currently in news

In news

SC direction to Centre to establish Special Courts and the Executive’s continued neglect

Placing it in syllabus

  1. Electoral Reforms (not mentioned explicitly)
  2. Constitutional bodies (ECI)

Static dimensions

  1. Criminalization of Politics in India
  2. Electoral Reforms in India
  3. Role of Judiciary in decriminalizing politics
  4. Role of ECI in decriminalizing politics
  5. Criminalization of Politics and its impact on democracy

Current dimensions

  1. Special Courts issue
  2. Electoral reforms in recent times

Content

Criminalisation 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.

Origin and growth of criminalization of politics in India

It is not a new phenomenon in India. What is new is the extent to which it has become a dominant trend today

  • 1975: 1st instances of “booth-capturing”
  • Until the late 1960s: the re-election rates of incumbents were high. Goons got political favours for helping them win elections.
  • As political competition included an element uncertainty of re-election of incumbent candidates leading to the entry of criminals in politics to maximize control over their own survival and protection.
  • 1969: Indira Gandhi banned corporate financing of elections which eliminated the most important legal source of finance and this shifted financing went underground.
  • At the same time, the costs of contesting elections kept increasing due to a rising population, increasing political competition further leading to the increase in number of political parties from 55 in the 1952 general election 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 dispose of large amounts of cash without detection.
  • Thus, parties fielded tainted candidates because they could contest an election without becoming a burden on the party’s limited coffers.
  • Data 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.
  • 2014 elections: 17% of 5,380 candidates contesting the Lok Sabha election are declared criminal charges in their affidavits submitted to the ECI; 10% have declared serious criminal charges such as murder and rape charges.

Impacts on Democracy

  • Disrupts the constitutional ethos
  • Making our citizenry suffer at the hands of those who are a liability to our country
  • It goes against the free and fair principle of elections needed for a healthy democracy
  • Criminals being part of government have nexus with different groups affecting the independence of the working of the government
  • It increases the unfair governance based on principles of corruption, nepotism.

Provisions made against criminalisation of politics

Representation of People’s Act, 1951 provides the basic and central framework to deal with criminalization of politics. Section (8) deals with this

Sec 8(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 to — (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Sec 8(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.

Sec 8(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.

Sec 8(4): Notwithstanding anything 8[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

Role of Supreme Court in criminalization of politics

In Lily Thomas Vs UOI case

  • SC nullified Section 8(4) as unconstitutional and void
  • Used wisdom from Art. 102(1) (e) and 191(1) (e) of the constitution.
  • 102(1) (e): Parliament can make a law providing for circumstances whereby a 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 total following important decisions came out of the controversy with respect to Clause 4: Lily Thomas Case – 2013

  • SC struck down this clause as unconstitutional
  • It is a case of inequality and criminalisation
  • SC stated: Constitution allows parliament to make laws for disqualification and not protection and preservation of membership of the house.
  • It will be Prospectively applied :Special courts formed for sitting candidates out of the judgement of SC as it doesn’t apply retrospectively

Special Courts

  • Long delays in judicial proceedings have allowed the politicians with criminal charges to contest in elections which have made the situation worse.
  • Thus fast track courts were proposed to exclusively try criminal cases against politicians to decriminalise IND politics.
  • SC directed Centre to set up special fast-track courts to deal with pending cases against legislators, while acting on PIL filed by BJP leader Ashwini Kumar Upadhyay who has sought a lifetime ban on all convicted politicians.
  • Centre told the SC that it had decided to set up 12 special courts throughout IND to exclusively deal with 1581 criminal cases pending against MPs and MLAs within a year.
  • As per the 11th Finance Commission analysis that one such court can dispose of 165 cases per annum.

Right to know about a candidate

This was one other step to curtail Criminalization of Politics. When the information about a candidate is open to the public voters can make an informed decision while voting. This brings transparency and hand fairness in elections.

In 1995 SC based on a petition filed directed that, every candidate contesting elections has to disclose the following during nomination:

  • Education qualifications
  • Criminal background
  • Assets and liabilities of the candidate and his/her family

Out of the 3, the whole assets and liabilities decision wasn’t implemented but it was recently implemented after further directions from the court. This shows a trend of continued neglect from the Parliament and the Executive in this area.

RPA, 1951 – Sec 123(3)

This particular section was taken to Supreme Court for interpretation. The controversy was related the word ‘his’ in the section. It says that a candidate can’t appeal votes on basis of his caste, race, language, religion, etc. To make elections free of communalization and identity politics  Supreme Court in Abhiram Singh Vs. C D Commachen – 1990 case ruled that the word ‘his’ here refers to voters and not the candidate. As a result the candidate can’t appeal to voters on the above identities of all voters. Through this the section gives a very broad meaning to the section and takes the issue of decriminalizing politics one step forward.

Advantages of the ruling

  • Will lay the foundation of developmental politics
  • De-communalise politics
  • It is a one step forward in decriminalizing politics

Role of ECI in decriminalising politics

  • ECI has recommended that even under trial Politicians in case of heinous crimes must be barred for contesting elections provided the case is filed before 1 year of elections and court has framed the charges to reduce malafide / false cases.
  • Introduction of NOTA (PUCL vs Union of India, 2014).
  • If a person is found guilty by a Commission of Inquiry then he/she shall be disqualified from contesting elections.
  • Evidence is also of the opinion that FPTP electoral system be replaced by the 2-ballot system under  which a candidate is declared elected from a territorial constituency on the basis of majority principle reducing the chances of a criminal getting elected.
  • Along with 2-ballot system, the negative vote shall also be introduced. This step has already been taken as per Supreme Court judgment.

Despite various initiatives taken by the Supreme Court and Election Commission of India Criminalization of politics has not moved anywhere due to following two reasons

  1. Continued neglect by Legislative and Executive wings on the issue
  2. Lack of focus on Intraparty reforms

Intraparty Reforms – Inevitable for decriminalisation of politics

Problems within parties in India which promotes Criminalization

  • Dynastic politics promotes transfer of power irrespective of the criminal background of a candidate
  • Personality factors being dominant today make parties work on whims and fancies rather than rules promoting criminals to stay in power
  • Lack of transparency in funding to the parties

Reforms:

Proposal that parties must be regulated by parliamentary law which should mandatorily include provision for de-recognition of parties which provide tickets to criminals and those which promote criminalization of politics.

Test yourself: Mould your thoughts

Intraparty reforms are inevitable to decriminalize politics in India. Do you agree with the statement? Substantiate.