CRIMINALIZATION IN POLITICS- BANE OF INDIAN DEMOCRACY
* Anumeha Jha
Criminalization of politics has greatly vitiated the socio-political fabric of our country. Elections in the world’s largest democracy have been attracting an ever larger number of criminal elements and this trend is discernible across all political parties. It is ironical that while Indian citizens have the power to change their government democratically, they have not been able to stem the criminalization of politics and the consequent erosion of civil liberties. Despite all the agitation of the civil society over this issue, political parties tend to succumb to the temptation of enlisting the support of criminal elements and accord primacy to their “winnability” factor and electoral clout. The pursuit of power has become the raison d’être of every political party. Hence, the brazen recourse to money and muscle power and divisive politics based on communal identity and caste.
Thankfully, the Supreme Court of India sent out a strong message against criminalization of politics by dismissing Sanjay Dutt’s plea to stay his conviction in the 1993 Mumbai blasts case. The apex court thus lent its support to the continuing struggle for cleansing the electoral and political system. The Bench observed that its powers to set aside the disqualification provision in the electoral law could be exercised only in very exceptional circumstances and it did not think this was a fit case where not only the sentence but also the conviction could be stayed. It also noted that Navjot Singh Sidhu’s case was different, as he was a sitting M.P. when he was convicted and had voluntarily resigned his seat to seek re-election.
It would be recalled that the issue of convicted candidates being allowed to contest elections had come to the fore when the cricketer-turned politician, who had been elected to the 14th Lok Sabha, was convicted by the Punjab and Haryana High court in December 2006 under section 304 of the IPC and sentenced to imprisonment for three years. Although the law allowed Sidhu to continue as M.P during the pendency of his appeal against conviction, he chose to resign on moral grounds and seek re-election from the same constituency. But for contesting an election, he needed a special dispensation and the apex court gave him the desired reprieve by temporarily staying his conviction, enabling him to contest the by-election.
In the recent general elections, a number of candidates with a record of conviction had approached various courts seeking similar exemptions. It is in this context that the Supreme Court’s decision to treat Sidhu’s case as an exception must be celebrated for the simple reason that it would otherwise have opened a Pandora’s box and encouraged convicted felons of all descriptions to seek greener pastures in various legislatures.
In an earlier landmark judgment delivered on March 13, 2003, the Supreme Court had made it mandatory for all candidates contesting elections to the Parliament and state legislatures to submit, along with their nomination forms, an affidavit disclosing details about their criminal, financial and educational backgrounds. This judgement came as the result of a four year long campaign by several civil society groups for greater transparency and accountability in the electoral processes.
Components of criminalization
Muscle power
The influence of muscle power in Indian politics was being decried even in the first general election of 1952. Allegations relating to the role played by outlaws in furthering the electoral prospects of certain candidates were heard even then; only the intensity and the frequency of such allegations have registered a quantum jump in recent times.1 In fact, we have today reached a stage where criminalization of politics is widely accepted as inevitable. Persons known to have a criminal past are not only getting party tickets, but on account of their clout, are also being appointed as ministers at the Union and State levels. Leaders of political parties stoutly defend any criticism of such choices. To add insult to injury, in the event of conviction and resulting disqualification, with the blessings of their party establishments, such elements are encouraged to pass on their mantle to their wives and progeny. It is a happy augury that many such proxy candidates were defeated in the recent Lok Sabha polls. But the fact remains that despite the best efforts of the Election Commission; the use of muscle power is a harsh reality and significantly influences the voting behaviour and the electoral outcome in many constituencies.
Money power / Corruption
Elections to the Parliament and the State Legislatures entail huge expenses for the political parties and their candidates. Many candidates spend large amounts in campaigning in the expectation of multiplying their investment after winning the elections. This leads to a vicious cycle, with the candidates and political parties spending ever increasing amounts of money in the elections and resorting to every conceivable dubious and corrupt political practice, to recover those expenses manifold.
A survey by the Centre for Media Studies estimated the total expenditure from the party funds on the Lok Sabha elections at around Rs 10,000 crore. A quarter of it, or Rs 2,500 crore approximately was assessed to be “unofficial money” or the cash outgo on inducement to voters. The candidates of national parties were in addition expected to spend another Rs 4,350 crore, while the candidates fielded by the regional parties accounted for an expenditure of Rs 1,000 crore.2 These figures are staggering by any yardstick. The compulsion to mobilize resources of this magnitude leads to a dependence on criminals and crooks and reinforces the nexus between politics and crime.
Inadequate Rules on Party funding
The inadequacy of the rules and regulations relating to political party funding (including provisions allowing for anonymous donations) comes out starkly as perhaps the prime reason for colossal amounts of money going into the party exchequer and allowing extensive opportunities for non-transparent and illegal financing, which cannot be traced or sanctioned. In this context, an RTI filed with the Election Commission of India by Common Cause, disclosed startling information. Many parties including two national parties have not been filing their contribution reports before the Election Commission, in accordance with the provisions of Section 29C of Representation of the People Act, 1951. This however did not prevent these political parties from wrongly claiming income tax exemption under Section 13A of the Income Tax Act. It is shocking that the Income Tax Department has been routinely granting tax exemption even to those political parties who are not entitled to it under the law, despite clear Supreme Court directions to the contrary.
What do the laws say?
Representation of People Act, 1951
According to Section 8(3) of the Representation of People Act (RPA), 1951 “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.” For certain offences listed under sub-section (1) of sec (8), conviction per se acts as a disqualification while for certain other offences given in sub sections (2) and (3) the quantum of sentence affects the conviction.
Thus once someone has been convicted disqualification follows, in which case the only recourse available is to get the conviction stayed, for removal of the disqualification.
Concerns of Election Commission
The Election Commission has been underlining the issue of increasing criminalization in politics since 1998. In his letter4 to the Prime Minister, the Chief Election Commissioner Mr. T.S. Krishnamurthy articulated the Commission’s concerns on the subject. “……. There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of lawbreakers becoming lawmakers and moving around under police protection. The Commission had proposed that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. Such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses……...”
Former Chief Election Commissioner Shri B.B Tandon6 also suggested that political parties evolve a code of ethics among themselves and not give ticket to such criminal elements. “It is only the will-power of the political parties which could help Indian democracy get rid of this menace.”
The Asian Human Rights Commission (AHRC) Report
The Election Commission’s views have been forcefully reiterated by the Asian Human Rights Commission. In its report published in April 2007, the AHRC noted that “Criminalization of politics in India is a growing problem, despite legal attempts to address it. In 2003 a law was introduced to prohibit the election of criminals or alleged criminals to state or central legislature. However, persons with criminal or alleged criminal backgrounds continue to hold seats in parliaments all over the country. In fact, current statistics show that some 23.2 percent of members of parliaments in India have criminal investigations or cases pending against them. The state election in Uttar Pradesh in April 2007 is a case in point. An estimated 35 percent of candidates have trials and cases pending against them. The charges include rape, armed robbery and murder. The primary reason for criminal elements gaining political power is the failure of rule of law. Criminals protect the illegitimate interests of politicians and in turn obtain protection from them and their parties. This mutually beneficial relationship works against the establishment of the rule of law. As a consequence, the criminal justice system is increasingly corrupted and manipulated. This decrepit state of affairs is essential to the continued criminal hold on parliaments across the country, as reasonably well-functioning police, prosecutors and courts would be a death blow to those in control.”7
Decriminalization of Polity
The criminalization of politics in our country has assumed a menacing proportion. It is ironical, even though the reasons for this may not be far to seek, that the executive and legislature which are the two main pillars of any democracy and responsible for the policy framing and their implementation, have failed to take positive, proactive and concrete steps to weed out criminalization from electoral politics. The very prospect of those with criminal backgrounds assuming the charge of lawmaking is reprehensible for the future of any healthy democracy. The fact that the 15th Lok Sabha has 150 MPs under the scanner on various criminal charges out of which 73 have serious charges including those of murder, rape, dacoity, kidnapping and corruption, speaks of the rot that has permeated the entire political system. Such large number of persons with serious criminal charges, are in a powerful position of influencing the very stability of any government.
The position has only deteriorated since 2004, when there were 128 MPs with criminal records out of which 55 had serious charges against them. Thus there has been an increase of about 17.2% in MPs with criminal records and 30.9% increase in the number of MPs with serious criminal records.
The concerns on criminalization of politics have emerged from the highest quarters. To quote Prime Minister Manmohan Singh on this issue, “The time has come when all political parties must sit together, evolve a code of conduct where we agree what constitutes a criminal activity, who is a criminal and what should be done in the future in dealing with all such elements. Now, we as a party would have very much liked to have such an understanding with all opposition groups, evolve a broad national consensus so that this whole phenomenon of criminalization of politics which worries everyone, can be dealt with effectively……..”9 Despite this statement, it could perhaps be the compulsions of coalition politics that there were at least 5 ministers facing criminal charges in the last government, but post Lok Sabha elections 2009, even when the largest component of UPA- the INC, is in a much stronger position, there are 9 ministers with pending criminal cases, with 1 having a serious criminal charge against him.
Shri L.K. Advani, Leader of the Opposition in Parliament, was equally unequivocal on the issue. While addressing a “Vijay Sankalp” rally on October 18, 2008, he said that the time had come to bring “purity and suchita” into politics and that his party will desist from giving tickets to any candidate with a criminal background, even if the prospective candidate was on a winning ticket. Echoing similar sentiments, another senior BJP leader, Shri Murli Manohar Joshi, urged the public to “reject the criminals contesting the Parliamentary elections, howsoever important figures they are, even if political parties do not dare to reject them. Do not spare such parties also.”
Despite these very public statements about denial of tickets to criminals, the Lok Sabha elections 2009, unfortunately was no exception and the political parties yet again put these issues on the back burner while deciding on their nominees. The total number of candidates with criminal records during the recently concluded Lok Sabha elections was 1114 (i.e. 15.1% of contesting candidates). The maximum number of candidates with criminal records included those from INC (114), BJP (113), BSP (105), SP (55), CPM (20) and CPI (7). There were 499 candidates charged with heinous crimes which includes, murder, attempt to murder, kidnapping, extortion, etc. Out of these INC & BSP had 43 each, BJP was next with 41 and SP had 33 candidates charged with such crimes.
Suggestions
One of the suggestions to decriminalize polity emerges from the National Commission to Review the Working of the Constitution (NCRWC)’s recommendation that “Representation of the People Act be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as, or for being, a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence. In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered”
The NCRWC offers a few more suggestions to stem the menace of criminalization in politics, viz, permanently debarring candidates convicted of heinous crimes, speedy disposal of pending criminal cases against politicians through special courts of the status of High Courts, disqualification not to take effect for a period of three months from the date of conviction in case of a sitting MP/MLA as well as during the pendency of an appeal against the order of conviction. However, this benefit would not be available for contesting fresh elections.
Conclusion
The results of all elections held for State Legislative Assemblies post 2004 give credence to the construct that the electorate behavior and the voting pattern in our country has begun to undergo a change. The results of 2009 general elections also reinforces this premise. There is a refreshing trend of voting on the basis of performance, both at the Centre and in the States, albeit in the absence of any pressing/emotive issue. While money power, crime and coercion still remain crucial factors, the recent trend of voting on the basis of performance has ensured that these ingredients are no longer a recipe for electoral success.
In order to make further advancements on these trends, and as proactive action in this direction, the like minded civil society organizations need to come together with a concrete and result oriented action plan. The stress should be on dissuading the political parties from giving tickets to candidates charged with heinous crimes, even if they are expected to win. This will go a long way in ring-fencing the political processes and democratic institutions from the politico-criminal nexus.
Sustained campaigns of awareness building among voters and against crime in politics along with concerted efforts on the legislative front will be required to undo the damage done to the country’s electoral system by politics of expediency and pursuit of power at any cost. There cannot be any slackening of effort, especially since the benefits of the sustained hard work put in to cleanse the electoral system seem to be materializing now. Any let up or faltering at this stage would push us deeper into the same morass.
* Ms. Anumeha Jha is Research Officer in Common Cause
