Criminalization of Politics

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Introduction

India can certainly be the world’s largest democracy, but it cannot claim that this democracy is led by ideal representatives.  In a democratic form of government, the public has the rights to choose their own leader who would be responsible for governing not only the country, but also be responsible for representing the nation at international levels. Therefore, the representatives should not only have the sense of responsibility, but also high morals and a clear image. But now, the politics is being criminalized at a very high rate. The politicians who contest for elections have cases of rape, murders, extortions pending on them, and the law allowed it until 2020.  Criminalization of Politics is the participation of criminals in the elections and becoming the Member of Parliaments and the Members of Legislative Assemblies. Rather than decreasing the corruption and scams in country, it would rather increase them. And thus, the electoral system of the country certainly requires an upgradation in the traditional system of politics. New laws should be made in order to prevent the same. Democracy entails the rule of law and the staging of free elections to determine the people’s will. However, in recent years, this peaceful process of social development has become significantly tainted. Politics’ criminalization has become a worry for India’s democracy. It is embarrassing to say that the cult of the gun reigns supreme in the world’s largest democracy; Goondas and criminals are paid to assassinate political enemies, and so on. The entire democratic process is undermined in this way. What is more unexpected, and disgusting is that these individuals make their way to the country’s highest governing body, the Parliament and Assemblies, even after committing significant criminal offences.

What is Criminalization of Politics?

In an ideal world, one would define “Criminalization” before “Politics,” however in the context of this subject, it is more vital to define “Politics” because the scope of “Politics” is critical in determining the parameters of “Criminalization.” “Politics” is defined as “the art or science concerned with guiding or influencing governmental policy,” according to the Merriam-Webster dictionary. As a result, it only makes sense to widen the scope of political criminalization to the point where all aspects of governance are encompassed. For example, when a person with a pending criminal accusation is given a ticket to run for office, this is a type of criminalization. The participation of candidates in the elections who have criminal charges such as rape, murder, extortion etc. in elections is called Criminalization of Politics. The constitution of India does not have any specific law barring candidates with criminal history to contest in the elections. This practice not only harms the nation’s reputation and governance, but also increases crime rates and disrupts law and order in the country.

Now, before understanding if criminals were allowed to contest in elections, it is necessary to understand who criminals are in eyes of law. According to the law, a person who has been proven guilty for the commitment of a certain crime or is convicted for the same is considered to be a criminal in the eyes of law.  The Section 8 of the Representative of People act states that a person who has been imprisoned for more than 2 years cannot contest election until 6 years of release from the jail. But due to judicial delay, this provision was not effective in practical life. In addition to it, there was no specified law prohibiting people facing a trial in the court to contest in the elections. In these circumstances, the rise in the number of members of parliament facing criminal charges will have a significant influence on Indian citizens’ faith in the democratic structure and its functioning mechanisms. This might have terrible consequences for the people’s democratic spirit and faith in the Constitution.

In law commission report of 2014, it was pointed out that since the Representative of People’s Act does not barre people with criminal background from contesting elections, and therefore it was not capable of curbing out the growing rate of criminalization of politics in India.

Reasons for Criminalization of Politics

The main reason for criminalizing politics is the inseparable link between politicians and bureaucracy. Excessive relations between bureaucrats and political leaders have opened the door to criminalizing politics. In addition to it, caste and religion both are also responsible for criminalizing politics. The bureaucracy has several procedures and rules for the promotion of the officials, but caste and religion hinder this process and therefore in many states, undeserving officers are promoted, and this is the root of criminalization of politics. Politicians in power favor the bureaucrats who help eliminating criminal charges on them.

In addition to it, the quota system is also responsible for this. They also said that a politician of a particular caste or religion would prioritize members of his caste or religion and this practice has been found in in several states of India.

The party system is also responsible for criminalizing politics. Ahead of the general election, party leaders make promises to the electorate. But when the political party wins the general elections and comes to power the promiser does nothing for the members who contributed to the victory of the political party. The funds which were given by the government for public welfare and had to be used for the betterment of the country, is being used for the own personal benefit of the politicians, thus creating another factor for Criminalization of Politics.

This shows that applicants who are susceptible to violations are more likely to win than applicants with clear qualifications. What makes Indians choose criminal politicians for this? It is said that people still vote for the culprit. Indian voters choose criminals for the divine benefits they will receive, as politicians will have tremendous freedom to enforce policies that distribute benefits to their citizens.

Laws Concerning Criminalization of Politics

According to section 4A of the Conduct of Election Rules of 1961 all candidate contesting an election must file an affidavit consisting of the following things: –

  1. If in any case, the applicant has been charged with a crime that could result in more than one year of custody or if involved in any2 ongoing proceedings.
  2. The cases if there has been a conviction of 4 years or more as mentioned under Section-8 of Representation of the People Act of 1951.

On March 27, 2003, the Election Commission issued an order for the candidates to make additional statement which should have focus on section 125A of the RP Act, which imposes penalties for providing incorrect or withholding information on Form 26, which might lead to a maximum imprisonment of 6 months, fine, or both. In a report titled “Proposal for 2004 Election Reform”, the Indian Election Commission said, ” 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.”

Provisions to Uphold Free and Fair Elections

  1. Article 324 of the Indian Constitution grants powers to the Election Commission of India to direct and control free and fair elections in India. The powers of Superintendence have been vested in the Election Commission.
  2. Article 325 of the Constitution ensures universal suffrage and provides that no person be ineligible for inclusion in, or to claim to be included in a special, electoral roll-on grounds of religion, race, caste, or sex.
  3. Article 102 of the Constitution sets grounds for disqualification of MPs whereas Article 191 sets out the same grounds for disqualification for member legislative assemblies.
  4. The 1951 Representation of Peoples Act also establishes a legal foundation for elections in India. The act’s main provisions include seat allocation in the House of People, as well as in the Legislative Assemblies and Legislative Councils of States. The Act also specifies the procedures for creating electoral rolls and filling seats. ROPA has provisions for candidates’ disqualification.
  5. The President of India has the authority to delimit constituencies, but only after consulting the Indian Election Commission. In addition to all of this, the 2017 Financial Bill included restrictions stating that no party would get more than Rs. 2,000 per participant.

Vohra Committee

The Vohra Committee was created to determine the degree of linkage between politics and crime and to suggest ways to effectively deal with political crime issues. The Vohra Committee made several comments in its report on criminal networks that effectively deal with the ruling governments. The Vohra Commission report also highlights the way criminal groups enjoy the support of politicians and the protection of bureaucrats. This report shows how political leaders have become a part of the mafia. Over the years, criminals have been elected to parliaments, government offices and local authorities. In the case of Shri Dinesh Trivedi, M.P. & Ors v. Union of India & Ors, 1997 in the Supreme Court of India, an in-depth investigation was ordered the by judge in order to investigate the findings of the Vohra committee. The Vohra Committee had suggested appointment of a high-ranking committee to ensure prosecution of participants.

In addition to it, the report discussed how politicians and economical power were used to develop the power system during the election. The Vohra Commission responded to the urgent need of intelligence agencies to deal with politics violations to limit this.

Statistical Analysis

The criminalization of politics has evolved from legislative to executive and executive to judiciary. According to the Association for Democratic Reform (ADR), the proportion of these candidates rose from 15% in 2009 to 17% in the 2014 elections and 19% in the 2019 Indian elections, with an unexpected figure reaching 13% candidate convicted for rapes and murders. Many candidates running for elections in 2019 have been charged with serious crimes, including murder, attempted murder, kidnapping, rape and other women’s crimes. What is surprising is that in 2009, criminal proceedings against 30% of Lok Sabha members began. It increased to 34% in 2014 and reached 43% for members elected by Lok Sabha in 2019. Evil can be better understood in a terrible picture. 29% of those elected in Lok Sabha in 2019 reported serious crimes.

The regions with the highest percentage of criminal whistleblowers are Goa (32%), Kerala (29%), Bihar (26%), and Jharkhand (26%). At the bottom are Rajasthan (6%), Haryana (7%), and Assam (7%). Uttar Pradesh, Gujarat and Maharashtra ranked first with the highest percentage of legislators accused of crime and atrocities. The disease affects almost all sides of politics and occurs in all conditions. It may seem strange, but people with criminal backgrounds are the first ones to be given security by the government. The criminalization of politics is everywhere, in every state, regardless of literacy, development, GDP or urbanization. People with criminal status become politicians and elected representatives. Political parties, voters and the national legal system are equally responsible for creating such a shameful situation. The Three Pillars (Legislature, Executive and Judiciary) that helped oversee each other weakened politics and corrupted their roots. India achieved independence on paper, but the colony Khatris still suffers from the masses.

Effects of Criminalization of Politics

India has a mixed economy and maintains a socialist-democratic republic system of government. India’s government is founded on universal suffrage and a socialist model, with the public sector occupying the highest positions. The system was found to be faultless, but those in charge of running the country failed the system by being strict when formulating policies and implementing them. Rigidity in approach, favoritism, inefficiencies, cold bureaucracy, and politicians’ entrenched interests are primarily to blame for driving the system to a nadir of inequity and misgovernance. The democratic form of government has been tainted by these injustices and imbalances. The society has been taken over by wealthy people with vast amounts of unexplained money, and a sizable portion of the population is willing to vote for money. It is a stunning revelation that the leaders of various impoverished areas frequently give money in exchange for votes from the underprivileged. And, once in power, these individuals generate more money by unhealthy and unlawful means than they spent on elections.

As a result, through criminality and muscle power, the election system harms the country’s democratic structure.

Some other major effects of criminalization of politics are: –

  1. Against the Principle of Free and Fair Elections.

If the politics is criminalized, it is obvious that the contesting parties would try and use muscle power and money to increase their vote bank. Some of the basic techniques used by politicians is bribing the people of slums and poor localities with some money and alcoholic beverages.  This enables the politicians to grab votes in large numbers. People from the slums are not literate enough to differentiate between the right and the wrong political party, and therefore they vote for those who bribe them.

  • Affects Good Governance

If the party in power has representatives that have been elected by bribing people and by other unfair means, then it would definitely affect the phenomenon of good governance. Good Governance refers to the measure of how public institutions conduct public affairs and manage the public resources.

But, if the law breakers have been given the responsibility of maintaining the law, then it would practically not be possible. The efficiency of the government in delivering what the public expects would be lowered.

Measures to Curb Criminalization of Politics

The following measures could prove beneficial to curb criminalization of politics in India: –

  1. An amendment should be introduced to reject the tickets of the politicians with criminal charges.
  2. Political parties should not give tickets to the candidate who is either convicted or proven guilty.
  3. Intra-party democracy should be promoted.
  4. Cases in which politicians are involved should be dealt by the fast-track courts and be given priority.
  5. Awareness regarding NOTA, i.e., None of The Above should be generated.

Negative Voting/ NOTA

Previously, there was no concept of negative voting. Voters who had to vote had to choose a candidate from the ballot box or use an electronic voting machine. The Indian Election Commission and the Indian Legislative Committee introduced neutral or negative institutional action. This system allows voters to vote for none of the candidates by selecting the None of the Above (NOTA) option. Building such a system guaranteed democracy. If the number of votes or the number of shares is sufficient, the election can be canceled, so there is a possibility of re-election. This maintains the integrity of the elections and ensures that the voter chooses the best candidate who they think is capable of representing the country and is not just better than the rest.

Public Interest Foundation Vs Union of India

The case of Public Interest Foundation Vs Union of India has been the subject of many writ petitions, the most important of which was filed in 2011 in the Supreme Court of India seeking advice on Criminalization of Politics and Criminal Restrictions on the same. The case was previously reviewed by a panel of three judges but was later referred to the Constitutional Bench under Article 145(3). The main prayer of the counsel was to ensure that those politicians who get charged in the court for any offence do not get the opportunity to participate in the election. The Constitutional Bench, consisting of five members of the Supreme Court, decided that prosecution alone could not ban candidates for election. The bench has also encouraged lawmakers to consider legislation to decriminalize politics. According to the petitioner, the court could force the Election Commission to prohibit political parties from selling tickets or soliciting support from independent candidates with criminal backgrounds. There was a provision in the 1968 decision to choose a symbol (storage and distribution) that the assignment of a symbol to a political party be revoked if it was discovered to be in breach of such EC guidelines. In articles 227 and 228 of the CrPC, Senior Counsel Dinesh Divedi claimed that the presumption of innocence was not acceptable. On the other hand, the respondents maintained that the Indian Constitution upheld the principle of separation of powers and that the courts lacked legislative authority. The constitutional bench consisting of five judges ruled that an individual cannot be barred from contesting elections merely because they have a criminal case filed against them. In addition to it, the court advised the legislature to make laws concerning the decriminalization of politics. The Hon’ble Supreme Court also mandated the following information to be made public by posting them on the political party’s official social media, one national newspaper and one local newspaper.

Also read: LAKSHWADEEP CRISIS

All competing candidates of the elections are required to fill out an Election Committee form and provide all necessary information. These included: –

  1. Criminal cases against the applicant in bold have to be mentioned.
  2. If a candidate participates in an election on the list of a specific political party, he/she must inform the party to bring criminal action against him/her.
  3. Currently, political parties are required to post the above information on their website about candidates with criminal records.
  4. Candidates and political parties must publish information about the candidate’s predecessors in local newspapers and advertise widely in electronic media. Speaking of widespread publicity, this means you have to do the same at least 3 times after submitting the reference document.

The court said it was time for the parliament to pass a bill that would keep those accused of serious crimes out of the political stream.

Significance of the Verdict

The Supreme Court has placed restrictions on all candidates contesting elections who are facing criminal accusations. The issue, according to the court, was a lack of voter information. This is either a naive or a depressing hope. Although the Honorable Supreme Court had already permitted the revelation of criminal pioneers in 2003, the proportion of parliamentarians facing criminal and criminal charges increased dramatically from 24% and 12% in 2004 to 30% and 15% in 2009. It has tripled since then. This conclusion is, in my opinion, unsatisfactory. This is because, although expressing alarm about the growing criminalization of politics as a threat to the Indian constitution’s fundamental framework, the bench demonstrates its indifference to the issue.

Conclusion

The fate of each country depends on its political system.  As Abraham Lincoln rightly said, “Democracy is of people, by the people and for the people.” But, after reading the above paper, it can be concluded now that the rule of law in the area of politics is found only in books. People belonging to criminal background have started taking over Indian Politics and have started destroying the roots of politics. Political corruption and criminalization are destroying the roots of democracy. Political criminalization has become a permanent feature of Indian politics. This destroys the true concept of democracy. Because political parties ultimately win, they do not act to reduce or eliminate criminal members of the political party. But now, it is the time to eliminate these practices. The parliament must take serious steps to limit this threat. We need to change the nature of government and make it more transparent, responsible and inclusive. It is not easy, but we can incorporate people’s rights (voting) into their rights without power, and they have to vote for the right person. Our leader must be someone who does not pay a voting fee and does not accept bribes even after being elected. If you want pure democracy, you need pure elections. Thus, it is very easy to conclude that if people focus on reducing the vote banks of the political party with a greater number of criminal representatives, the political party would themselves start acting and nominate people who would work for the betterment of the society, and not their own personal cause. The supreme court, in case Public Interest Foundation Vs Union of India, issues guidelines which increased the transparency of the elections, but some major steps need to be taken by the Election Commission of India too, to contest fair elections and not decriminalize politics.

Bibliography

  1. Criminalisation of Politics, Drishti IAS (2021)

 https://www.drishtiias.com/daily-updates/daily-news-editorials/criminalisation-of-politics-2 politics

  • [1] Diganth Sehgal, The criminalisation of politics and how to prevent it? – iPleaders iPleaders (2021)

 https://www.legitquest.com/case/manoj-narula-v-union-of-india/8A4AF#0 politics/

  • [1] Supreme Court Observer – Electoral Disqualification: Judgment in Plain English, Scobserver.in (2021)

https://www.scobserver.in/court-case/electoral-disqualification-case/plain-english

  • Public Interest Foundation vs Union of India – Law Times Journal, Law Times Journal (2021),

           https://lawtimesjournal.in/public-interest-foundation-vs-union-of-india/ politics

  • [1] Readers’ Blog & Criminalization politics, Criminalization of politics Times of India Blog (2021),

 https://timesofindia.indiatimes.com/readersblog/hail-to-feminism/criminalization-of-politics-24324/ politics

  • [1] Diganth Sehgal, The criminalisation of politics and how to prevent it? – iPleaders iPleaders (2021)

 https://blog.ipleaders.in/criminalisation-politics-prevent/ politics

  1. [1] Owning up to criminalisation in politics, The Hindu (2021), https://www.thehindu.com/opinion/lead/owning-up-to-criminalisation-in-politics/article32035186.ece politics

Author: Saksham Srivastav, Kirit P. Mehta School of Law, NMIMS Mumbai

Editor: Kanishka VaishSenior Editor, LexLife India.

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