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Decriminalising Politics

2020 FEB 5

Mains   > Polity   >   Election   >   Electoral reforms

WHY IN NEWS?

In an attempt aimed at decriminalising Indian politics, the Supreme Court directed political parties to upload the details of pending criminal cases against their candidates on their websites and social media platforms.

CRIMINALS IN POLITICS:

  • Criminalization of Politics means that the criminals entering politics and contesting elections and even getting elected to the Parliament and state legislature.
  • As per the report released by National Election Watch and Association for Democratic Reforms (ADR), the 17th Lok Sabha have close to half of its new MPs with declared criminal cases.
  • About 13% of the candidates who contested the election in 2019 are accused of heinous crimes that include murder, attempt to murder, kidnapping, rape and other crimes against women. Out of the 539 winners, 233 MPs have declared criminal cases against themselves.
  • The chances of winning for a candidate with declared criminal cases in the Lok Sabha 2019 was 15.5% whereas for a candidate with a clean background, it was 4.7%.
  • In the recently-held Delhi assembly elections, 104 candidates had criminal cases pending against them.

RECENT VERDICT:

WHY THE TREND PERSISTS:

  • Criminal-Politician nexus: The criminals need the patronage of politicians occupying public offices to continue with their criminal activities and the politicians need the money and muscle power that the criminals can offer to the politicians to win elections. In course of time, the nexus led the criminals themselves to contest elections.

  • Criminality and winnability: Criminality, far from deterring voters, encourages them because it signals that the candidate is capable of fulfilling his promises and securing the interests of the constituency. Hence, the chances of winning for a candidate with declared criminal cases is higher than for a for a candidate with a clean background. This provides an added incentive for parties to field criminals.
  • Judicial delays: It takes on an average 15 years for a criminal case to be finally disposed off by the courts. Moreover, the rate of conviction in the country has been going down which means more and more criminals may go unpunished as their guilt is not proved beyond reasonable doubt in court of law. Seeking protection under “law will take its own course" has become a convenient mask for all political parties and tainted candidates to hide.
  • Passive voters: There are rules that mandates a candidate to publish cases against them at the time of filing affidavits. However, the voters take little effort to analyze or verify these when they are published.
  • Vote bank politics: To serve their vested interests and vote bank politics, parties give tickets to tainted candidates.
  • Poor governance: Weak laws, poor conviction rates and the limited powers of the Election commission have been major hinderances in cleansing the political arena. For e.g.: The EC has no express powers to cancel or postpone an election. It relies on Article 324 of the Constitution which gives the poll body the superintendency as far as the conduct of free and fair elections is concerned.

MEASURES TAKEN:

LEGISLATIVE:

  • Representation of the People Act, 1951:
    • Section 8(1), 8(2), and 8(3) of the RPA, 1951 provide grounds of disqualification for any person who is convicted and given varying range of imprisonment, for a period of 6 years from the date of his release from prison for certain offences under the IPC, Dowry prohibition Act etc.
  • Conduct of Election Rules, 1961:
    • It prescribes that each candidate must file an affidavit regarding cases in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii) cases for conviction for an offence other than any of the offences mentioned in Section 8 of the Representation of the People Act, 1951 and sentenced to imprisonment for one year or more.
  • Chapter IX A of Indian Penal Code deals with offences relating to elections. It comprises of nine sections. It defines and provides punishment for offences, such as bribery, undue influence and personation at elections etc.
  • The Vohra Committee on “Criminalisation of Politics”: It was constituted towards the objective of identifying the extent of the political-criminal nexus and recommend ways in which the menace can be effectively dealt with. This report contained several observations made by official agencies on the criminal network which was virtually running a parallel government.
  • Special courts to try pending criminal cases against legislators and parliamentarians are being established across several states in the country.
  • The Election Commission has taken several proactive measures to curb the influence of criminals in politics through measures such as the effective implementation of moral code of conduct and establishment of Expense monitoring cell.

JUDICIAL ACTIVISM:

  • Union of India vs. Association for Democratic Reforms 2002:
    • The Supreme Court held that the voters enjoy right to make informed choices during elections. Hence, it directed Election Commission of India to make it mandatory for contesting candidates to declare their assets and liabilities, that of their spouses and dependent children, any criminal conviction or cases pending and the educational qualifications at the time of filing the nomination papers.
  • Ramesh Dalal vs. Union of India 2005:
    • The Supreme Court held that a sitting MP or MLA shall 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.
  • Lily Thomas Vs. Union of India 2013:
    • Section 8(4) states that if a sitting member of Parliament or state legislature is convicted and sentenced to not less than 2 years of imprisonment shall be disqualified from being member of house. However, if the member goes on appeal against his conviction within 3 months, then he shall not be subject to disqualification. The Supreme Court in Lily Thomas vs. Union of India 2013 held Section 8(4) as unconstitutional and void.
  • People's Union for Civil Liberties vs. Union of India 2013:
    • The Supreme Court held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected.
    • The court directed the Election Commission to provide the NOTA button in the EVM.

WAY FORWARD:

  • Creating more transparency in electoral politics: Bringing greater transparency in campaign financing and inner party democracy can greatly reduce the influence of criminals in the political process. For the same, political parties and their finances should be brought under the Right to Information (RTI).
  • State funding of elections: It means government extending financial assistance to the political parties to contest elections in part or in full, in kind or in cash. The objective could be to control or eliminate the outside pressure over government policies and functioning by vested interests by funding political parties and candidates during elections. It could help in controlling the flow of unaccounted money and muscle power of criminals during elections and corruption in public life.
  • Strengthen the Election commission: The EC should have the power to break the nexus between criminals and politicians. However, in matters of conducting election, it derives most of its powers from article 324. It is not adequately equipped to regulate the political parties. The EC has no power in enforcing inner-party democracy and regulation of party finances. This should change and for this, legislative measures are essential.
  • Improve upon the criminal justice system: Time bound investigation of cases, better conviction rates and timely disposal of cases can help cleanse the system effectively. Special courts are one way of addressing the timely disposal of cases. However, further measures are essential to ensure time bound investigation of cases related to politicians.  
  • Legislative backing: Decriminalisation of politics can be achieved through laws so as to ensure that persons facing serious criminal cases do not enter the political arena.
  • Enhance voters’ awareness: The ultimate power of eradicating criminals from politics lies with the voters. They should be made aware of the grave consequences of criminalization of politics. Information regarding the background of candidates should be made easily available to the voters so that they can make informed choice.
  • Better governance: It is the failure of good governance that forces the people to rally behind powerful criminals and corrupt politicians. Broader governance will have to improve for voters to reduce the reliance on criminal politicians. E-governance can act as an effective tool in this regard.

CONCLUSION:

  • Electoral system should be able to attract the best talent in the country. Hence, there must be no place for the criminals in the electoral process of obtaining General Will. The current judgement, though significant, is expected to have little impact on the rising criminal tendencies in the country.
  • A number of commissions and committees such as, the Law Commission of India, Election Commission, and Vohra Committee etc. have examined the issue of criminalization of politics and recommended various reforms which can help clean the system.
  • Equal consideration must be given to ensuring safeguards to ensure that candidates with unsubstantiated or politically motivated criminal charges against them are not punished.
  • For true decriminalization of politics, the instant need is to abolish the patronage to criminals which is often given by politicians and political parties. A strong political will is required on the part of government to decriminalize the entire political system by taking stringent measures as well as by enactment of required legislations.

Practice Question

Q. Criminalisation of politics is an extremely disastrous and lamentable situation for Indian democracy. Examine the reasons for the same. What measures have been taken to address them?