CURBING THE MENACE OF CRIMINALIZATION OF THE POLITY

The rampant criminalization of our polity has been a cause of grave public concern. A large number of law-makers in our Parliament and State legislatures have been charged with serious offences, conviction for which is liable to result in disqualification from the membership of the House. However, our tainted legislators enjoy, in effect, a virtual immunity as the criminal cases against them drag on interminably and in the rare event of conviction, they are able to ward off the threat of disqualification merely by preferring an appeal or application for review within the period of limitation. Common Cause and Public Interest Foundation, in pursuit of their common objective of cleansing our polity of criminal elements, have come together to draw the attention of the Union Law Minister to this sorry state of affairs and offer concrete and pragmatic suggestions for curbing the menace of criminalization of politics. The letters addressed by Common Cause and Public Interest Foundation to the Union Law Minister in this regard are reproduced below.

- Editor

May 26, 2010

Dear Sir,

1. We are writing on behalf of two civil society organizations striving for governance reforms, viz. Common Cause and Public Interest Foundation.

2. Established by the legendary social activist, Shri H.D. Shouri in 1980, Common Cause is a registered society, which is dedicated to public causes and to securing redress of the common problems of the people by interceding with public authorities and resorting to public interest litigation, if necessary. Many of the PILs filed by Common Cause have addressed critical dimensions of governance reforms. Notable among these are the following:

i) Accountability of Political Parties: In WP 24/1995 Common Cause Vs Union of India (AIR 1996 SC 3081), the Supreme Court issued binding directions regarding maintenance of audited accounts and filing of income tax returns by political parties.

ii) Speedy Justice: In WP 1128/1986 Common Cause Vs Union of India (AIR 1996, SC 1619), the Supreme Court issued directions for discharge of the accused in all cases, where the period of pendency/detention was disproportionately long in relation to the gravity of the offence.

In WP 122/2008 Janhit Manch, Common Cause and others Vs Union of India and others, the Petitioners have made comprehensive suggestions for ensuring speedy justice and liquidating the backlog of cases.

iii) Consumer Protection: In WP 1141/1998 Common Cause Vs. Union of India and others (1993 AIR 1403), the Supreme Court mandated the establishment of district consumer forums in accordance with the provisions of the Consumer Protection Act, 1986.

iv) Police Reforms: In WP 310/1996, Prakash Singh, Common Cause & another Vs Union of India & others (2006 [6] Suppl. SCR 473), the Supreme Court issued timebound directions for ensuring the functional autonomy and accountability of state police forces and improving the functioning of central police forces.

v) Probity in Public Life: In WP 26/1995, Common Cause Vs Union of India, Common Cause prayed that the respondents be directed to set a timeframe for enacting a law to establish the institution of Lokpal to curb the bane of corruption. During the pendency of the petition, the Supreme Court ordered the cancellation of irregular allotments of petrol pumps made by Capt. Satish Sharma, Minister of Petroleum.

3. Public Interest Foundation, also a registered society, was established in January 2008 to focus on issues that impact on the larger interests of society. Mr Naresh Chandra, formerly Indian Ambassador to the USA and Cabinet Secretary, heads the Foundation. Its interventions and advocacy efforts aim at maximizing public welfare. Ensuring the purity of the political process in the country has been a core concern of the Foundation. In a bid to curb the influence of criminal elements in public life, the Foundation has joined hands with like-minded organizations, such as ‘Common Cause’ and ‘Association for Democratic Reforms. The Foundation’s “No Criminals in Politics” Campaign, launched before the 2009 General Elections, made a forceful appeal to the political parties to deny their tickets to people of criminal antecedents and exhorted the citizens to spurn candidates with criminal backgrounds.

4. Sir, our organizations are deeply concerned about the growing criminal presence in our legislative organs. Recent experience has belied the expectation that the requirement of disclosure of the criminal records of candidates would enable the electorate to make an informed choice and keep persons of criminal antecedents out of legislative bodies. It is seen that major political parties blithely field a large number of candidates with criminal records and that many of them get elected to Parliament and various state legislatures. As per the affidavits filed with the Election Commission of India in the context of the General Elections of 2009, 162 MPs elected to the 15th Lok Sabha had 522 pending criminal cases relating to offences covered under section 8 (1), section 8 (2) or section 8 (3) of the Representation of People Act, 1951 (RPA). This figure was substantially higher than in the 14th Lok Sabha, which had 128 MPs with criminal records, having a total of 429 criminal cases against them. Even in the Rajya Sabha, the House of Elders, 16 percent of the members have criminal cases pending against them.

5. The state legislatures also have large numbers of members with pending criminal cases. In two of the state legislative assemblies constituted last year, a majority of the members had pending criminal cases against them. The percentage of tainted MLAs in the new Jharkhand Legislative Assembly was as high as 73.

6. It has also been observed that criminal cases against legislators remain pending for inordinate lengths of time. We have collated information in this regard for MPs of the 15th Lok Sabha from the affidavits filed by them with the Election Commission before the 2009 General Elections. In these affidavits, information regarding the date of framing charges/taking cognizance by the court is only available for 111 out of the 522 pending criminal cases. A vintage analysis of these cases shows that as many as 41 percent of the cases have been pending in courts for more than four years.

7. There is strong empirical evidence in support of the premise that pending criminal cases against legislators rarely achieve judicial closure during the term of the legislative bodies. As mentioned previously, as of April 2004, 128 candidates eventually elected to the 14th Lok Sabha had pending criminal cases relating to offences covered under sub-section 8 (1) or 8 (2) of the RPA, or those punishable by imprisonment for two or more years. Out of these, 11 were re-elected to the 15th Lok Sabha. Therefore, it is possible to ascertain the status of these cases in April 2009 from the affidavits filed with the Election Commission before the 2009 General Elections. Of the 28 criminal cases pending against these MPs in 2004, 23 were still pending in 2009; 2 were disposed of; and nothing definite can be inferred about the remaining 3 cases, since they are not mentioned in the affidavits of 2009. Thus, it may legitimately be inferred that a vast majority of cases against legislators do not get decided during the life of a legislature. Consequently, the provisions of Section 8 of the RPA, enacted for shielding our legislative bodies from criminal elements, have virtually been rendered nugatory.

8. In addition to undermining the prestige and majesty of our legislatures, the delay in disposal of cases against legislators has eroded people’s confidence in our political and judicial processes. There is a strong public perception that legislators use their political power to subvert the system of administration of criminal justice to their advantage. The growing nexus between criminals and the political establishment has spawned a power structure that is not subject to the writ of the State and fosters illegal, even anti-national activities.

9. The issue of criminalization of our polity has greatly exercised political analysts, public figures, and the lay public alike. August bodies such as the Election Commission of India, the Law Commission and the National Commission for the Review of the Working of the Constitution, have gone to the extent of recommending the disqualification of candidates charged with serious offences from contesting elections to the legislative bodies At the recent Diamond Jubilee celebrations of the Election Commission, the President of India and senior leaders of political parties expressed grave concern over the rampant criminalization of politics and called for a consensus on barring candidates with criminal records from contesting the elections.

10. However, it is the considered opinion of our organizations that fast-tracking of criminal cases against members of Parliament and state legislatures offers a pragmatic solution to the problem of criminalization of politics, as it does not entail any amendment to the electoral law, for which a legislative initiative based on political consensus would be needed.

11. The expeditious disposal of criminal cases against legislators as well as the appeals/revisions brought by them against their conviction to avoid disqualification in terms of sub-section 8 (4) of the RPA, will have both short-term and long-term benefits. In the immediate term, time bound disposal of cases pertaining to legislators will ensure that the innocent among them are able to redeem their image in the eyes of the electorate expeditiously, while those convicted of offences mentioned under sub-sections 8 (1), (2), and (3) thereof are promptly disqualified from membership of legislative bodies, thereby enhancing their prestige. In the long term, this measure will deter candidates with criminal backgrounds from contesting elections, thereby cleansing our polity.

12. We understand that your Ministry has under consideration proposals for expediting the disposal of certain categories of cases, notably those concerning offences against women, children and the disabled, terrorism and bounced cheques. For the reasons outlined above, we feel that criminal cases against legislators, which fall within the ambit of sub-sections 8 (1), 8 (2) and 8 (3) of the RPA, as well as the appeals and revisions referred to in sub-section 8 (4) thereof, should be accorded the highest priority and disposed of within a timeframe of six months.

13. We would, therefore, request you to make concerted efforts to ensure that all criminal cases/ appeals/revisions relating to members of Parliament and state legislatures are put on a fast track and disposed of by the courts of competent jurisdiction within a time limit of 6 months. As regards new criminal cases instituted against members of Parliament and state legislatures, this period of six months may be reckoned from the date of taking cognizance by the courts.

14. In order to expedite the disposal of criminal cases/appeals/revisions relating to legislators, your Ministry may take the initiative for laying down strict guidelines and timelines for various processes intervening between the stages of taking of cognizance by the courts to the delivery of judgment, particularly in regard to processes susceptible to manipulation by the accused, as well as processes where negligence by the prosecution/court staff can lead to significant delays.

15. We are hopeful that while efforts are underway to evolve a political consensus on barring candidates with criminal records from contesting the elections to legislative bodies, your Ministry will take effective steps for fast-tracking of criminal cases, appeals and revisions concerning legislators and ensuring their disposal within a definite timeframe. We are convinced that these steps will go a long way in cleansing our democratic polity. 16. Common Cause and Public Interest Foundation will be only too happy to collaborate with your Ministry towards this end.

With best regards,

Yours sincerely,

June 1, 2010

Dear Sir,

Subject: Amendment to sub-section 8 (4) of the Representation of the People Act, 1951 This is in continuation of the letter addressed to you on May 26, 2010, by Common Cause and Public Interest Foundation regarding fast-tracking of criminal cases against legislators. We would now like to draw your kind attention to the unintended consequences of the reprieve provided by sub-section 8 (4) of the Representation of the People Act (RPA), 1951, to legislators convicted of certain offences, who in terms of one of the sub-sections 8 (1), (2) and (3) of the said Act, would otherwise have been disqualified from the membership of the legislature.

2. Sub-section 8(4) of the RPA, is extracted hereunder:

“8. Disqualification on conviction for certain offences

…………………………………………………………………………………

(4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of the convictionis 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.”

3. A bare perusal of the aforementioned section makes it clear that disqualification from membership to the legislative body under sub-sections 8(1), 8(2) or 8(3) of the RPA, stands suspended if the convicted legislator files an appeal/revision against the conviction within a 3 month period. Sub-section 8(4) of the RPA, thus extends to sitting members of legislatures a privilege that is not available to candidates contesting elections to Parliament and State Legislatures. In the case of the latter, a subsisting conviction in respect of an offence falling within the ambit of anyone of the sub-sections 8 (1), 8 (2) and 8 (3) of the said Act renders them ineligible for being elected to a legislative body.

4. The disqualification under sub-sections 8(1), 8(2) and 8(3) of the RPA, is intended to insulate Parliament and State Legislatures from persons of criminal antecedents so as to maintain the dignity of the legislative process. Sub-section 8 (4) makes an exception in respect of sitting members of these bodies by giving them an opportunity to have their conviction set aside in appeal or revision, which is to be filed within a period of three months. However, no time limit is prescribed for pronouncement of a final order in such appeal or revision. Given the complexities and slowness of the judicial system and the dilatory tactics adopted by the interested parties, the indefinite reprieve granted by sub-section 8 (4), which can be secured merely by filing an appeal or application for revision within the period of limitation, effectively negates the intended objectives of sub-sections 8(1), 8(2) and 8(3) of the RPA.

5. We, therefore, request you to do away with the automaticity of the exception under subsection 8 (4) by providing that the suspension of the disqualification under sub-sections 8(1), 8(2) and 8(3) shall take place only in the event of a court of competent jurisdiction granting a stay against the order of conviction within a 3 month window from the date of conviction. This amendment will make it incumbent on a convicted legislator to establish to the satisfaction of the court that there is a sufficient cause for suspending the disqualification envisaged under sub-section 8(1), 8(2) or 8(3) of the RPA, as the case may be. It will thus complement the measure of fast-tracking of criminal cases against legislators and help achieve the objective of minimizing the influence of criminals in our legislatures.

6. Your public pronouncements on governance reforms and the imperative of cleansing our democratic polity have encouraged us to submit this proposal for your kind consideration. We shall appreciate an early response to this communication.