his article is written by Vanya Verma pursuing B.B.A. LL.B (Hons.) from the Alliance University, Bangalore. This article deals with what is the criminalisation of politics, the committee formed for this, and how to curb criminalisation of politics.

Introduction

The criminalisation of politics means the participation of criminals in politics which includes that criminals can contest in the elections and get elected as members of the Parliament and the State legislature. It takes place primarily due to the nexus between politicians and criminals.

Our election system is in a dire need of systematic and strategic improvements. The criminalisation of our political system has unanimously been observed by almost all recent committees on politics and electoral reform. 

There are many forms of criminalisation of politics, the one that is most alarming among them is a significant number of elected representatives with pending criminal charges against them. The criminalisation of politics involves intimidation of voters, booth capturing, the proliferation of non-serious candidates, tampered electoral rolls, and other polling irregularities.

Criminalisation of Politics

• Began in the late 1970s;
• There was no law to bar criminal candidates;
• Alarming in the criminalisation of politics has increased in the last 4 general elections.

The Vohra Committee on “Criminalisation of Politics”

The Vohra Committee on “Criminalisation of Politics” was constituted with an objective to identify the extent of the political-criminal nexus and to recommend ways in which the criminalisation of politics can be effectively dealt with. Official agencies in the report made several observations on the criminal network which had virtually been running a parallel government. The Report of the Vohra Committee also discussed how the criminal gangs enjoyed the support of politicians and protection they were being provided from the government functionaries. The report revealed how political leaders have become gang leaders. Over the years criminals have been elected to Parliament, State Assemblies, and local bodies. 

The Supreme Court in Shri Dinesh Trivedi, M.P. & Ors v. Union Of India & Ors, 1997 recommended for the appointment of a high-level committee for ensuring an in-depth investigation of the findings of the N N Vohra Committee and to secure the prosecution of those involved and said: “to take urgent stock of all available information about the activities and links of all…(Customs, Revenue, Intelligence, etc.) to gather the required information”. 

It was discussed in the report, how the money power is, in essence, being utilized to develop the muscle-power network which the politicians use during elections. The Vohra Committee ended with regurgitating the fact that there is an essential need to set up intelligence agencies to deal with the problem of the criminalization of politics in order to curb the same.

The present laws for candidates involved in the criminalisation of politics

It is stated in the Section 4A of the Conduct of Election Rules, 1961 that an affidavit must be filed by each candidate. The affidavit should consist of:

1. If in any case the candidate has been accused of an offence that is punishable with two or more imprisonment, in any pending case in which the charges have been framed by the court.
2. The cases where a conviction for an offence is involved other than an offence that has been mentioned under Section 8, Representation of the People Act, 1951, (The R.P. Act, 1951) and sentenced with imprisonment for one year or more.

Pursuant to the order of the Supreme Court, in addition to this, on 27 March 2003, the Election Commission issued an order that an additional affidavit must be filed by the candidates stating that Section 125A of the R.P. Act which prescribes penalties for providing incorrect or withholding information on Form 26, this amounts to a maximum of six months imprisonment, or fine, or both. 

The Election Commission of India in the report entitled Proposed Electoral Reforms, 2004 noted that “in few cases, the candidates leave some of the columns blanks, there have been cases where the candidates are contended to have given grossly undervalued information.”

Recommendations made by the report on Proposed Election Reforms, 2004

The recommendations were made by the Election Commission of India in its report on the Proposed Election Reforms, 2004, that:

• Section 125A of the R.P. The Act should be amended, in order to provide more stringent punishment for concealing or providing wrong information in Form 26 under The Conduct of Election Rules, 1961 to a minimum term of two years imprisonment and the alternative punishment of assessing a fine upon the candidate should be removed. 
• It was also recommended to amend Form 26 to include all items of the additional affidavit, that was prescribed by the Election Commission as well as to add a column where the candidates should disclose their annual income for the purpose of tax including their profession. 
• The most important recommendation was to make an amendment in The R.P. Act, 1951, to insert a new section that should make a declaration of assets and the criminal cases that are pending against the candidate, this should be made necessary as part of the qualification for membership to the House of the People.

The R.P. Act 1951 must be expanded in its scope in order to deter the politicians from having a criminal background and the ones who have committed heinous crimes. In case a candidate has charges framed against him under Section 8 with regards to offences and otherwise, he should be disqualified for a duration of six years. 

However, mere disqualification for a certain period of time cannot be the final cure under any circumstance. In order to set aside the lacunae, it is only possible if the de-criminalisation of politics takes place. Candidates should be disqualified if they violate this provision and the political parties who with the knowledge of their antecedents should be derecognized and deregistered. On this matter, many committees made an important submission that any person who is convicted for heinous crimes such as murder, rape, dacoity, smuggling, etc. should be disbarred permanently from contesting in the elections.

There is an inherent need to supersede the existing judicial hierarchy and establish fast-track courts to accomplish this purpose. This encompasses a quick trial within six months from the time charges are framed so as to determine whether or not a candidate is qualified to hold office and applies to the post vide public elections.

Negative Voting

Earlier there was no concept of negative voting. The voters going to cast their votes had to choose one candidate from the ballot paper or on an electronic voting machine. The Election Commission of India and the Law Commission of India have the institution of the neutral or negative voting system. This system gives a choice to the voter to choose none of the candidates on the ballot by selecting “None Of The Above” (NOTA). There could be a democratic safeguard with the institution of such a system. If there are sufficient and proportional negative votes it can render the current election to be null and void and there are chances that re-election would consequently be taken up.

The negative voting was also essential as if there would be plenty of negative votes against a single candidate, it would let the party know that their candidates are not strong enough to contest the election, the political party should bring up a strong candidate that is favoured by the voters.

The SC Judgement

The Supreme Court bench of justices R.F. Nariman and S. Ravindra Bhat on 13th February 2020 ordered the political parties to publish criminal antecedents of their candidates for the Legislative Assembly and Lok Sabha elections.

The order said that a detailed reason within 48 hours of the selection of the candidates should be published by the parties as to what made them choose the candidates having criminal records over other candidates.

Information to be disclosed

• The crime that the candidate is accused of;
• How many cases and what kind of cases are charged against the candidate?;
• Details of the case, case number and name of Court;
• At which stage the criminal case has reached – FIR or investigation or charge-sheet or trial;
• Why can’t the other individuals without any criminal antecedents can not be selected as candidates?

“Winnability” cannot be the only reason for the selection of the candidate.

The information must be uploaded on

• social media platforms like Facebook and Twitter.
• one national newspaper.
• website of the party.
• one local vernacular newspaper.

As of today, the political parties do not offer any explanation as to why the people with pending criminal cases are selected as candidates for contesting elections when they have a choice.

Contempt of Court

• A report of compliance shall be submitted by the concerned political party in compliance with the directions to the election commission within 72hrs of the said candidate.
• If there is a failure on the part of the political party to submit this compliance report, then the Election Commission shall report such non-compliance by the concerned political party to the Supreme Court as being contempt of the Court order.

Enforcement of decrees and orders and Contempt of Supreme Court is dealt under Article 129 and Article 142 of The Constitution of India, 1949.

The case of Court contempt will be filed against the party president.

September 2018 verdict

Recently on contempt plea orders were passed by the Supreme Court that had put forward the issue of criminalisation of politics, it was claimed that September 2018 verdict of the court was not being followed in this verdict the Supreme Court gave directions that were given by a constitutional bench comprising of 5 judges, which was related to the disclosure of criminal antecedents by candidates.

In 2018 verdict the directives were issued by the Apex Court to ensure that-

• The voters have knowledge about the antecedents of the candidates.
• The details related to the pending criminal cases against the candidate have to be uploaded by the political party on their website.
• Such information must be provided by the candidates in their election affidavit and also publish the same in a “widely circulated newspaper”.

Aren’t the criminals banned from contesting elections already?

• Section 8 of the R.P. ACT provides that an individual punished with imprisonment for more than 2 years cannot stand in an election for 6 years after the jail term has ended.
• But the candidates facing trial, no matter how serious the charges are, are not restricted from contesting elections.
• The fact that the cases are dragged for years in the courts makes this provision virtually ineffective.

It was pointed out in the 2014 report of the law commission that “disqualification upon the conviction has not proved to be capable of curbing the growth in the criminalisation of politics, owing to rare conviction and long delays in trials”.

• The Representation of The People Act does not restrict the individuals from contesting elections who have criminal cases pending against them.
• A 2014 report of the law commission pointed out that the disqualification upon conviction has proved not to be capable of curbing the growing criminalisation of politics.

In 2018 an affidavit submitted by the centre to the Supreme Court also confirms the shortcoming of Representation of People Act’s disqualification clause. The affidavit says that there are more than 3800 criminal cases against 1765 MP’s and MLA’s across the country, of which 3045 cases are pending.

The percentage of members of the parliament who faced criminal cases pending against them

24%- 2004

30%- 2009

34%- 2014

43%- 2019

Supreme Court judgement- “It is time to confirm that the laws are made by the parliament to prohibit the people from entering into the political stream, who are facing serious criminal charges. It is one thing that the accused van take cover under the presumption of innocence, but it is equally essential that the people who are participating in the law-making and entering into public life should not be indulged in any sort of serious criminal allegation. It is true that sometimes false cases are imposed on the forthcoming candidates, but the same through appropriate legislation can be addressed by the Parliament. The nation waits eagerly for such legislation, as the society expects to be governed by proper constitutional governance. The voters demand systematic sustenance of constitutionalism.”

Causes of Criminalisation of Politics

One of the most important reasons for the criminalisation of politics is the nexus between the politicians and bureaucracy. Even factors like caste and religion are equally responsible for this. It is seen in many states in India that a minister of a particular caste or religion will be favourable towards the members of his own caste or religion. The quota system is equally responsible for this criminalisation.

Reasons for the criminalisation of politics:

Vote Bank

Individuals and political parties do astronomical expenditure for buying the votes and for other illegitimate purposes. The politician’s link with the constituency gives rise to political crime.

Corruption

Corruption is also an important factor in the criminalisation of politics. The corrupted political member uses his powers for winning the elections not in a fair manner.

Lack of Governance

The origin of the problem of the criminalisation of politics is mainly the country’s poor governance capacity. On one hand, excessive procedures are used by India to allow the bureaucracy to insert into the ordinary life of people while on the other hand, it appears that it is woefully understaffed to perform its most crucial functions.

Other reasons for criminalization of politics include

• A partisan interfering in the investigation of crime and poor prosecution of cases.
• Massive delays of cases of criminal candidates over the years and high cost that is involved in the judicial proceedings.
• Unwarranted granting of parole and abundance withdrawal of the court cases.

These reasons have also been equally responsible for spurring criminalisation in politics.

                      

Suggested measure to curb criminalisation of politics

1. The Political parties should themselves refuse tickets to the tainted candidates.
2. There should be an amendment in the RP Act to debar the persons from contesting elections against whom crimes of heinous nature are pending.
3. Fast-track courts should deal with the cases of politicians with criminal records. Fast-track courts are necessary because the politicians have the power to keep on delaying the judicial proceedings and serve for decades before any prosecution takes place. If there is a speedy trial of politicians who have criminal records, they might not be able to contest elections.
4. Intra-party democracy and accountability should be promoted by the Constitution.
5. Persons who have been punished with a jail term of more than 7 years should not be given a right to contest elections before the High Court grants permission.
6. Awareness should be created about NOTA (none of the above) and such other options to prevent the criminals from winning elections.

Other suggested measures

• Greater transparency should be brought in campaign financing that will make it less desirable for the political parties to comprise the candidates pertaining to criminal background.
• The penalty should be inflicted on the political parties who give tickets to the criminals to contest in elections.
• The appointment of Election Commissioners should be in a fair and transparent manner.
• The Election Commission of India (ECI) should be given the power of auditing the financial accounts of the political parties or the finance of the political parties must be brought to the Right to Information (RTI) law.
• Broader governance should be improved for voters in order to make them aware if there is any criminal background of the candidate. 
• To modify the existing laws legal changes should be made and to prevent the criminals from contesting in elections. The criminals should be blacklisted and disciplinary actions must be taken against them.
• Adequate measures must be taken by the Election Commission in order to break the link between the criminals and politicians.

The forms that have been prescribed by the Election Commission for the candidates to disclose their convictions and their cases pending in courts in their nomination papers is also a step in the right direction if applied properly.

Conclusion

The criminalisation of politics and corruption hits the roots of democracy. There should be wide publicity of the candidates with criminal records, who are contesting in an election and the political parties that give them support. The publication must be such that it is easily available to the voters, that is not on the party’s official website as each and every voter won’t check the profile of each candidate and some might not even have access to or knowledge about this electronic means. This is important in order to curb criminalisation of politics.

References

1. http://www.legalserviceindia.com/legal/article-988-criminalization-of-politics-in-india.html
2. https://www.careerlauncher.com/blogs/criminalisation-of-politics-an-overview/
3. https://www.careerride.com/view/criminalisationofpoliticsdefinitionreasonsandstepstoeliminateit22056.aspx
   

   ---

   LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

   https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

   Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.