Criminalization of Politics in India

Context:

SC has directed Parliament to pass a law to stop criminalization of politics

What is criminalization of politics?

Criminalization of politics means the rising participation of criminals and people facing criminal charges in politics. The term indicates people with criminal backgrounds becoming politicians and elected representatives.

Extent of criminalization of Indian Politics:

• The Vohra Committee Report in 1993, and the report of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 confirmed that there has been a growing trend of persons with extensive criminal backgrounds entering politics.

Data by the Association for Democratic Reforms (ADR) for the Lok Sabha and Assembly elections showed the following:

• 17% of 5,380 candidates contesting the Lok Sabha election 2014, had declared criminal charges in the affidavits submitted to the Election Commission
• 10% had declared serious criminal charges such as murder and rape charges.
• States with the highest percentage of candidates facing criminal cases are Goa (32%), followed by Kerala, Bihar and Jharkhand.
• Proportion of MPs facing criminal charges in 15^th Lok Sabha was 30%, and those facing serious criminal charges was 24%
• Uttar Pradesh, Gujarat and Maharashtra top the list with the highest percentage of MPs accused of criminal and serious criminal offences.

• Criminal backgrounds are not limited to contesting candidates, but are found among winners as well. 13.5% of the winners between 2004 and 2013 had criminal charges against them (Law Commission, Feb 2014, 244^th Report)

Causes of criminalization of Politics:

1. Vote bank Politics: Money and muscle power of criminals help political parties gain votes. Since, in India electoral politics is more about caste, ethnicity, religion and several other factors, candidates overcome the reputational loss due to criminal charges and come out as victorious in elections.
2. Black money in elections: Electoral politics is largely dependent on the money and the funding that it receives. Since candidates with criminal records often possess greater wealth, they ensure greater inflow in money, labour and other advantages that may help a party in successful campaign, and also possess greater ‘winnability’
3. Lack of Intra-party democracy: Political parties in India largely lack intra-party democracy and the decisions on candidature are largely taken by the elite leadership of the party. Thus, the politicians with criminal records often escape the scrutiny by local workers and organisation of the party.
4. Lack of adequate deterrence: Due to the low levels of convictions of MPs and MLAs, and delays in trials political parties are not deterred from giving tickets to criminals.
5. First Past the Post (FPTP) electoral system:

• FPTP electoral system allows a candidate to be declared elected from the constituency on the basis of plurality of votes polled and not on the majority of votes polled.
• Thus, a candidate with as low as 25-30% of valid votes polled may get elected. Criminals do not find difficult to secure the votes because of the use of their money and muscle power.

6. Loopholes in the functioning of Election Commission:The Election Commission has prescribed forms for the contestants of elections to disclose their property details, cases pending in courts, convictions etc. while filing their nomination papers. However, these steps have not been stringent enough to break the nexus between crime and politics.
7. Civil society in India has failed to check criminalization of politics due to resistance from establishment, prevalent use of money and muscle power and lack of voter awareness
8. Lack of ethics and values in Indian politics further accentuates the problem of criminalization. The political parties have been reluctant in checking criminalization for own vested interests.

Consequences of criminalization of politics:

1. The presence of people with criminal backgrounds in politics and law-making of the country has negative impacts on the quality of democracy

2.Enormous amounts of illegal money flow into the electoral process due to extensive links with the criminal underworld

3. Criminalization of politics also has the consequence of obstructing the process of justice and causing further delays in trials.
4. Criminals entering politics further increases corruption in public life and has an adverse negative impact on the state institutions including the bureaucracy, the executive, the legislature and the judiciary.
5. Criminalization of politics introduce a culture of violence in the society and sets a bad precedence for the youth to follow.

Legal Framework:

Constitutional Provisions:

1. Qualification:Article 84 of the Constitution
2. Disqualification: Article 102 states that a person shall be disqualified from being chosen, and from being a member of either House of Parliament if:

• he holds an office of profit,
• if he is of unsound mind and so declared by a competent court,
• if he is an undischarged insolvent,
• if he is not a citizen of India and if he is disqualified by any other law made by Parliament

3. Corresponding provisions for members of State Legislative Assemblies are found in Articles 173 and 191.

Representation of People’s Act, 1951:

• Parliament through the RPA has prescribed further qualifications and disqualifications for membership to Parliament or to a Legislative Assembly.
• Section 8 of the Act lists certain offences which, if a person is convicted of any of them, disqualifies him from being elected, or continuing as, a Member of Parliament or Legislative Assembly.
• A candidate to any National or State Assembly elections is required to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Election Rules, 1961. Failure to furnish this information, concealment of information or giving of false information is an offence under Section125A of the RPA. 

Important Supreme Court Judgements:

2002– In in Union of India (UOI) v. Association for Democratic Reforms and Anr, the SC held that that every candidate, contesting an election to the Parliament, State Legislatures or Municipal Corporation, has to declare their criminal records, financial records and educational qualifications along with their nomination paper.

2005- InRamesh Dalal vs. Union of India, the SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.

2013- In Lily Thomas v. Union of India, the SC held that that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. The court held that MP/MLA convicted for two years or above would be disqualified immediately.

• In 2017, the Central Government informed SC that lawmakers convicted in any criminal case would not stand automatically disqualified. A convicted lawmaker may move the appellate court to get the conviction stayed thus allowing him or her to continue.

2015: In Krishnamurthy v. Sivakumar&Ors. the SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidateat the time of filing of nomination paper as mandated by law was a categorically imperative.

2018- In Public Interest Foundation & Others Vs Union of India, left the matter of disqualification of politicians carrying criminal charges against them, to the Parliament saying that the court cannot add to the grounds of disqualification. However, it made the following directions:

• While filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters.
• Political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites.
• 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
• Parliament must legislate on the matter to ensure that candidates with criminal antecedents do not enter public life or become lawmakers

Analysis of the SC Recommendations:

The SC recommendations have been criticised on the following grounds:

• Parliament, regardless of who is in power, has always been reluctant to legislate on the issue.
• Voters do not generally read the websites of political parties.
• The recommendation regarding publicity campaigns about the criminal background of candidates by political parties is counter-intuitive and there is no incentive for political parties to publicise something which will go against them.

Important Recommendations

Law Commission Recommendations:

The Law Commission in its 244th report on Electoral Reforms titled “Electoral disqualifications” had put forward recommendations on de-criminalization of politics. The main recommendations include:

1. Expediting trials in relevant courts where a case is led against a sitting MP/MLA and to conduct the trial on a day-to-day basis with an outer limit of completing the trial in one year.
2. Retroactive application– from the date the proposed amendments come into effect, all persons with criminal charges (punishable by more than five years) pending on that date are liable to be disqualified subject to certain safeguards.
3. The punishment for filing false affidavits under Section 125A be increased to a minimum of two years, and that the alternate clause for ne be removed.
4. Conviction under Section 125A should be made a ground for disqualification under Section 8(1) of the RPA, 1951.
5. The filing of false affidavits should be made a corrupt practice under Section 123 of the RPA.

Election Commission Recommendations:

The Election Commission in its “Proposed Electoral Reforms” (2016) recommended that:

Persons charged with cognisable offences should be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is led at least 6 months prior to the election in question.

Criticisms: The recommendation has been criticised primarily on two grounds:

• ruling politicians will misuse this against the opposition
• the law of the land assumes everyone to be innocent till proved guilty or convicted.

2nd ARC Recommendations:

The Second Administrative Reforms Commission in its fourth report on Ethics in Governance (2008) made the following recommendations:

1. Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, where charges have been framed six months before the election.
2. It also supported the proposal of including filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950.

Way Forward:

1. The legal framework needs to be reformed to effectively curb the steady flow of criminals into the political process.
2. The issues of the limited deterrence posed by disqualification upon conviction, and the delays in trials of influential persons that result in a subversion of the process of justice needs to be urgently addressed.
3. The Election Commission must take adequate measures to break the nexus between the criminals and the politicians. The most important step in this direction would be checking the use of black money in party and election funding.
4. Intra-party democracy should be strengthened for better scrutiny and selection of candidates.
5. A strong political will is required on the part of government to decriminalize the entire political system by enactment of required legislations and taking adequate measures.
6. Politics can only be decriminalized through larger public awareness and public participation in elections, politics and governance. Further, electoral process should be made more inclusive through wider participation from all sections of the society