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DECRIMINALISING POLITICS
Democracy disciplined and enlightened is the finest thing in the world. A democracy
prejudiced, ignorant, superstitious, will land itself in chaos.
- M.K. Gandhi
INTRODUCTION:
India became polluted due to the criminalisation in Indian politics and just because of this India,
an example of a largest democracy has lost the correct definition of democracy given by
Abraham Lincoln Govt of the people, by the people and for the people and it changed into
Govt off the people buys the people and far the people.1
The criminalisation of politics means involvement of criminal elements in the governance of the
country those who make the law for their own purposes. The criminalisation is a kind of hysteria
in Indian politics which making India as a country which does not have their roots deep in the
land.
Electoral reforms are an imperative and are something that could help clean public life. One of
the most important features of a democratic polity is elections at regular intervals. Elections
constitute the signpost of democracy. These are the medium through which the attitudes, values
and beliefs of the people towards their political environment are reflected. Elections grant people
a government and the government has constitutional right to government those who elect it.
Elections are the central democratic procedure for selecting and controlling leaders. Elections
provide an opportunity to the people to express their faith in the government from time to time
and change it when the need arises. Elections symbolize the sovereignty of the people and
provide legitimacy to the authority of the government. Thus, free and fair elections are
indispensible for the success of democracy.
Democracy:
Democracy is a faith in the spiritual possibilities of not a privileged few but of every
Human being.
Sarvepalli Radhakrishnan
Democracy has not been a free gift for most of the present democratic nations including India.
India earned its independence and democracy after a long freedom struggle. The most significant
feature of a democracy is the election process. Free and fair elections are essential in a healthy
democracy. For the success of democracy, it is necessary that people maintain their allegiance
towards the democratic institutions based on rule of law. The more the elections are free and fair,
the stronger the allegiance the people will have towards democratic institutions. Contrary to this,
if the elections are not free and fair, the people will not have faith in democracy. Parliament has
made a law to ensure free and fair elections and a very comprehensive system of elections has
been developed in the country. The experiences of the last fifteen General Elections have shown
the merits and demerits of the system to the people. Minor changes have regularly been made in
the election system. However, still our electoral process is beset with many evils like use of
black money, casteism, communalism, rigging, abuse of administrative machinery,
criminalization of politics, and even capturing of booths in some areas. All these abuses lead to
eroding of faith of the people in free and fair elections.
Over time, this has been held to be a part of the basic structure of the Constitution, immune to
amendment, with the Supreme Court of India declaring,
It is beyond the pale of reasonable controversy that if there be any unamendable features of
the Constitution on the score that they form a part of the basic structure of Constitution, it is
that India is a Sovereign Democratic Republic.2
The democracy is a govt of the people, by the people and for the people. India is also following
this democratic setup of govt. The survival of Indian democracy is necessary for the interest of
people which can be secure by free and fair election process. The election process is a method to
ascertain the representation of people in the govt. The will of the people comes through the
representation by casting their votes to constitute and elect the body for their governance. The
will of the people is supreme for democratic setup of the country. If the will of the people is
polluted, good governance of the country is not possible. In the present scenario the image of
Indian democracy is diminishing due to the crime, criminals and criminalisation in Indian
politics. The definition of democracy has been totally changing into the government off the
people, buys the people and far the people.
Indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664. )
J.N.Pandey; the constitutional law of india.
The Rajya Sabha can have a maximum of 250 members in all. Elections to it are scheduled and
the chamber cannot be dissolved. Each member has a term of 6 years and elections are held for
one-third of the seats after every 2 years. 238 members are to be elected from States and Union
Territories and 12 are to be nominated by The President of India and shall consist of persons
having special knowledge or practical experience in respect of such matters as the following,
namely literature, science, art and social service. The minimum age for a person to become a
member of Rajya Sabha is 30 years.4
Representatives of Union Territories are indirectly elected by members of an electoral college for
that territory in accordance with system of proportional representation.
can be nominated by the President of India if he or she feels that the community is not
adequately represented. House seats are apportioned among the states by population.
Disqualifications:
As per the constitutional provisionsA person is disqualified for being chosen and for continuing as a member of parliament if he
suffers from following disqualifications:7
(a) if he holds any office of profit under central or the state govt other than an office declared
by parliament by law not to disqualify its holder.
(b) If he is of unsound mind and a competent court has declared him to be so.
(c) If he is an undischarged insolvent.
6
7
http://www.kkhsou.in/main/polscience/government_state.html.
Article 102 of Indian constitution
(d) If he is not the citizen of india, or has voluntarily acquired citizenship of a foreign state,
or under any acknowledgement of allegiance or adherence of a foreign state.
(e) If he so disqualified under any law made by parliament.
For this purpose parliament has described necessary disqualifications in the representation of
peoples act, 1951.
power of superintendence, direction and control of all elections to the Parliament of India and
the state legislatures and of elections to the office of the President of India and the VicePresident of India.
The Chief Election Commissioner can be removed from his office by Parliament with two-thirds
majority in Lok Sabha and Rajya Sabha on the grounds of proven misbehaviour or incapacity.
Other Election Commissioners can be removed by the President on the recommendation of the
Chief Election Commissioner. The Chief Election Commissioner and the two Election
Commissioners draw salaries and allowances at par with those of the Judges of the Supreme
Court of India as per the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Rules, 1992.
Constitutional provisions:
Under Article 324(1) of the Constitution of India, the Election Commission of India, inter alia, is
vested with the power of superintendence, direction and control of conducting the elections to
the offices of the President and Vice-President of India.9 Detailed provisions are made under the
Representation of people act, 1951 and the rules made there under.
At present, the Election Commission of India is a three-member body, with one Chief Election
Commissioner and two Election Commissioners.
10
In order to restore the faith of people in democracy, there is an urgent need of electoral
reforms. Various electoral reforms have been introduced in our electoral system in the
past. And many other numerous electoral reforms have been introduced by Election
Commission from time to time but still there is lot to be achieved.
No electoral system can function properly unless the underlying political system in which
it operates is appropriate, just as a healthy plant cannot grow and bear good fruit unless
the soil is properly prepared, the fruit in this case being governance.
Our electoral process is beset with many evils like use of black money, casteism,
communalism, rigging, abuse of administrative machinery, criminalization of
politics, and even capturing of booths in some areas. All these abuses lead to eroding of
faith of the people in free and fair elections.
As democracy has been held a basic structure of Indian constitution the criminalisation of
politics affecting it in course of demolition.
The laws regarding elections and what the electoral reforms have been done till the date
are adequate but still the issue is unresolved means there is the problem of non
implementation of the laws and rules regarding this.
At this time this issue of criminalization is a topic of debate. How we can save our
democratic setup from this hysteria. Our constitution and representation of people act
are silent on this issue.
Voters are helpless and even intelligentsia have lost faith in system.
2. To get the solutions and suggest them to law makers for removing the impurity which is
there in Indian politics in form of crime.
3. To study and make analysis over the problem of criminalization in various political
parties.
5. To eradicate the evils like black money, booth capturing, scams, casteism,
communalism etc from the politics.
Hypothesis:
It is very important that democracy forms the basic structure of the society. Effort must be made
to make society democratic. Democracy should be the value system of Indian citizens. The
responsibility of survival of democracy cant be shifted on the state institutions alone. The
citizens have an equal part to play in the healthy functioning of the democracy. Hence, there is
no doubt that electoral reforms are the need of the hour in order to attain sustainable democratic
India. Electoral system should be able to attract the best talent in the country. Elections should
not be seen as mere rituals but the pathways of democracy.
Supreme Court has also held that free and fair elections are a part of the basic structure of
the Constitution. There is an urgent need to break the criminal-political nexus. Unless some
decisive action is taken soon, the public will lose all faith in politics, politicians and democracy
itself. This will do irreparable damage to our republic.
Democracy:
Democracy is a faith in the spiritual possibilities of not a privileged few but of every
Human being.
Govt of the people, by the people and far the people
10
The Supreme Court in Lily Thomas vs. Union of India11 held Section 8(4) as
unconstitutional and void. Hence, now if a sitting Member of Parliament or state
legislature is convicted and sentenced to not less than 2 years of imprisonment, he will
get immediately disqualified from being member of house. This case talks about free and
fair election should be conducted. This is a crucial judgment and will go a long way in
cleaning our political system.
Research design:
Sources of data:
Primary sources:
The constitution of India, 1950
The representation of people act, 1951
Judicial decisions.
11
11
Secondary sources:
J. N. Pandey; the constitutional law of India
M. P. Jain; the constitutional law of India
O.P. Tiwari; The election law
Some articles over electoral reforms
As: Election Commission of India's Model Code of Conduct
Chapterisation:
The research project contains following chapters namely;
Chapter 1. Introduction
Contribution of study:
The study contributes in a manner to make the people in the society aware about the problem
arising because of too much criminalisation is there in politics and its adverse impact on the
12
constitutional rights of citizens of India and also provides solutions in terms of electoral reforms
towards decriminalising Indian politics.
Limitation:
The research is done in prospect of India only.
Democracy as a form of governance was the central plinth of the constitutional scheme
envisaged by the framers of the Constitution of India. The ultimate aim, as evidenced in the
Constituent Assembly debates and gleaned from their personal writings, was the empowering of
each and every Indian citizen to become a stakeholder in the political process. To this end, the
citizen was given the power to elect members of the Parliament and their respective State
Legislative Assemblies through the exercise of their vote, a system that the framers believed
would ensure that only the most worthy candidates would be elected to posts of influence and
authority. Representative government, sourcing its legitimacy from the People, who were the
ultimate sovereign, was thus the kernel of the democratic system envisaged by the Constitution.
13
Over time, this has been held to be a part of the basic structure of the Constitution, immune to
amendment, with the Supreme Court of India declaring,
It is beyond the pale of reasonable controversy that if there be
any unamendable features of the Constitution on the score that they form a part of the basic
structure of Constitution, it is that India is a Sovereign Democratic Republic.12
Dr. Rajendra Prasad, in his concluding address to the Constituent Assembly categorically said,
A law giver requires intellectual equipment but even more than that capacity to take a balanced
view of things to act independently and above all to be true to those fundamental things of life
in one word to have character.13
Mohinder Singh Gill v. Chief Election Commissioner14
In this case Supreme Court heldDemocracy is government by the people. It is a continual participative operation, not a
cataclysmic periodic exercise. The little man, in his multitude, marking his vote at the poll does a
social audit of his Parliament plus political choice of this proxy. Although the full flower of
participative Government rarely blossoms, the minimum credential of popular government is
appeal to the people after every term for a renewal of confidence. So we have adult franchise
and general elections as constitutional compulsions It needs little argument to hold that the
heart of the Parliamentary system is free and fair elections periodically held, based on adult
franchise, although social and economic democracy may demand much more.
indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664
Vol. XI, C.A.D. (November 26th, 1949)
14
(1978) 1 SCC 405, 424 at para 23.
15
(2005) 1 SCC 754, 780 para 54.
13
14
with criminal background from entering into politics and the house a powerful wing of
governance. Persons with criminal background do pollute the process of election as they do not
have many a holds barred (sic) and have no reservation from indulging into criminality to win
success at an election.
16
http://gradestack.com/CBSE-Class-9th/Challenges-to-Free-and-Fair-Electio/14931-2957-3186-study-wtw
15
Thus in what basis we can say there is free and fair election in India and no need of electoral
reform as well. As what is going on for a time free and fair election is myth for India.
17
Dr.B.L.Fadia,IndianGovernmentandPolitics(2013)
16
Parliament also so far has failed to enact adequate electoral reforms to decriminalize politics.
The political parties are also guilty of not following value-based politics which combined with
declining value system in society has also contributed to criminalization of politics. The
criminalization of politics has very adverse consequences on the society as well as on the nation.
It is very well understood that if there is criminalisation in such a way there would defenetly be
the affecting consequences not good for Indian democracy.18
Consequences:
The major impact is that the law-breakers get elected as law-makers. According to Election
Commission, about 40% of members elected to 15th Lok Sabha are facing criminal charges in
court of law. This makes the Parliament less efficient in enacting necessary laws for the effective
administration of country. The Parliament loses its credibility and the Council of Ministers loses
its legitimacy to administer the country. Political patronage and a culture of adjournment
collude to prevent speedy trials against elected representatives. Public prosecution is often
ineffective and coloured by vested interests. All in all, the system is wired to push for a
favourable outcome for an accused elected representative. It also leads to increased circulation of
unaccounted money or black money during and after elections, diluting the probity in public life.
The increased levels of corruption in public life weakens the state institutions including the
bureaucracy, the executive, the legislature and the judiciary. Further, it introduces a culture of
violence in the society and sets a bad precedence for the youth to follow.19
ELECTORAL REFORMS
In order to restore the faith of people in democracy, there is an urgent need of electoral reforms.
Various electoral reforms have been introduced in our electoral system in the past. Parliament
through a constitutional amendment in 1989 reduced the minimum voting age from 21 to 18.
18
19
http://policyblog.oxfordindiasociety.org.uk/2013/04/29/proposals-for-decriminalising-politics-in-india
TheHindu,September27,2013
17
The Representation of the Peoples Act, 1951, was amended to facilitate use of Electronic
Voting Machines (EVMs).20 A person who is convicted for the offences under the Prevention
of Insults to National Honour Act 1971 is disqualified to contest in the elections to the
Parliament and state legislature for 6 years. There is prohibition on entering into the
neighbourhood of a polling station with any kind of arms. Under a 2003 provision, the Election
Commission should allocate equitable sharing of time on the cable television network and other
electronic media during elections to display or propagate any matter or to address public.
Candidates are now required to furnish their criminal antecedents, assets, educational
qualifications, etc. on their nomination papers. The above mentioned as well as other numerous
electoral reforms have been introduced by Election Commission from time to time but still there
is lot to be achieved. The ship of democracy in India is adrift in choppy waters. Grave risks lurk
all around. Unless it is steered with great care and in the appropriate direction, it just might hit a
rock of an iceberg and disintegrate of sink. Nothing is impossible in the volatile world in which
not everyone is happy to see India prosper. However, no electoral system can function properly
unless the underlying political system in which it operates is appropriate, just as a healthy plant
cannot grow and bear good fruit unless the soil is properly preparedthe fruit in this case being
governance. Therefore, the political will is must to introduce the much required core electoral
reform in a sustainable manner.
18
leads to a very undesirable and embarrassing situation of law breakers becoming law makers and
moving around under police protection. The fact that 20% of present lok Sabha members have
criminal charges on them itself proves are impotency to counter this evil. The contrary view to
disqualify the accused politicians is that a person is presumed innocent unless proved guilty and
the issue is still disputed with the debate going on. When we idealize a state of corruption free
politics and a crime free state, the first step in this regard must be decriminalisation of politics
which has been an issue since past many years and yet unresolved.21
21
National seminar on electoral reforms in india in contemporary constitutional perspective lucknow university,
22 april 2012, p. 62
19
disclosure of cases where charges had been framed22 against a candidate and where conviction
would lead to a sentence of two years or more. To prevent malicious or motivated cases by
rivals, the Court limited this disclosure only to those cases where charges were framed at least
six months prior to the date of elections. The ECI now makes affidavits of candidates available
on their websites. ADR conducts National Election Watch for every national and assembly
election in partnership with a nationwide network of organizations and in the process collected
this data. This database which can be found at www.adrindia.org and www.myneta.info was used
to analyze the issues of criminalization, money in elections, winnability, and role of gender in
elections.23
Some data is available in form of table showing Summary of serious criminal charges on
Politicians(Of All State Assembly, Lok Sabha, Rajya Sabha elections from 2004 to
September 2013)24
1229
0.02
335
0.04
Other
murder
related
Rape
3128
0.05
846
0.10
68
0.00
17
0.00
Other crimes
against women
455
0.01
136
0.02
Robbery and
dacoity
1004
0.02
276
0.03
Kidnapping
976
0.02
282
0.03
22
(A charge is framed by a court, typically a judicial magistrate first class (JMFC), on the basis of a charge sheet
filed by the police after investigation. Thus an FIR against someone would not constitute a case as described by the
Supreme Court)
23
Economic & Political Weekly JANUARY 4, 2014 vol XLIX no 1
24
Economic & Political Weekly JANUARY 4, 2014 vol XLIX no 1
20
Cheating,
forgery,
counterfeiting
Government
seal
counterfeiting
Electoral
frauds
3039
0.05
909
0.10
226
0.00
76
0.01
226
0.00
303
0.03
Sub total
10351
0.16
3180
0.36
All other
serious charges
3633
0.06
1644
0.19
Total
13984
0.22
4824
0.55
The data show that there was one serious charge for approximately every 5 candidates (0.22),
and one for every 2 elected representatives (0.55).
If we look upon 2013 data found, A total of 4,807 sitting MPs and MLAs as of August
2013 were analyzed, of whom 1,460 (30%) sitting MPs and MLAs have declared
criminal cases against themselves and 688 (14%) have serious criminal cases. If anything,
the situation has become slightly worsened since the data has become publicly available
and analyzed since 2004 when the comparable figures for winners with a criminal charge
were 28.4% and winners with serious criminal charges were 13.5%.
If a person is accused of a serious crime (that is, where the law prescribes a punishment of not
less than 5 years for the alleged crime) and if a court of law has framed criminal charges against
the accused, then it shall be regarded as a reasonable ground for the disqualification of accused
from contesting elections. The Election Commission is of the opinion that framing the criminal
charges by a court means that the court prima facie believes that the accused might have been
involved in the alleged crime.
If a person is found guilty by a Commission of Inquiry then he shall be disqualified from
contesting elections.
The FPTP electoral system shall be replaced by the 2-ballot system under which a candidate is
declared elected from a territorial constituency on the basis of majority principle. In a multicornered contest if no candidate attains more than 50% of valid votes polled, then the 2
candidates who obtained the largest number of valid votes polled alone shall be allowed to
contest the next round of elections. This system would make it difficult for a criminal to get
elected.
Along with 2-ballot system, the negative vote shall also be introduced. This step has already
been taken with the help of above mentioned Supreme Court judgement. Some other measures
which could also be pondered over for decriminalization of politics include:
Right to recall - It confers the power on the registered voters in a constituency to recall
their elected representatives from the house on the ground of non-performance. It could
empower the people at grass root level. The elected representative could be made truly
accountable to the people. In such scenario, political parties will be forced to nominate
eligible and desirable candidates to contest elections because of the fear of removal of
elected representative. However, for such system to work high level of political maturity
is required on the part of voters.
22
elections. It could help in controlling the flow of unaccounted money and muscle power
of criminals during elections and corruption in public life.25
.( Association for Democratic Reforms (ADR) and National Election Watch (NEW) Recommendations for
ElectoralReforms(April,2011)
26
Union of India v Association for Democratic Reforms, Appeal 7178 of 2001 with Writ Petition (C) NO 294 OF
2001; 2 May 2002; Appeal from: CWP 7257 of 1999 (High Court, Delhi)
27
1988 AIR 775, 1988 SCR(2) 1011)
23
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. 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 201328 held Section 8(4) as
unconstitutional and void. Hence, now if a sitting member of Parliament or state legislature is
convicted and sentenced to not less than 2 years of imprisonment, he will get immediately
disqualified from being member of house. This is a crucial judgment and will go
a long way in cleaning our political system.
In another recent judgment, Supreme Court held that a voter could exercise the option of
negative voting and reject all candidates as unworthy of being elected. The voter could press the
None of the above (NOTA) button in the electronic voting machine (EVM). The court directed
the Election Commission to provide the NOTA button in the EVM. Writing the judgment, the
CJI said: Giving right to a voter not to vote for any candidate while protecting his right of
secrecy is extremely important in a democracy. Such an option gives the voter the right to
express his disapproval of the kind of candidates being put up by the parties. Gradually, there
will be a systemic change and the parties will be forced to accept the will of the people and field
candidates who are known for their integrity.29 The Bench said the NOTA option will
accelerate effective political participation in the present state of the democratic system and the
voters will in fact be empowered. The right to cast a negative vote, at a time when
electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of
its objectives, namely, wide participation of people.
Thus, supreme court of India has taken various steps and did allot of efforts to decriminalise
politics.
28
29
Writ Petition (civil) 490 of 2005, Lily Thomas vs Union of India; July 10, 2013
Writ Petition (civil) no 161 of 2004, PUCL vs Union of India, 23 September 2013
24
CONCLUSION
It is very important that democracy forms the basic structure of the society. Effort must be made
to make society democratic. Democracy should be the value system of Indian citizens. The
responsibility of survival of democracy cant be shifted on the state institutions alone. The
citizens have an equal part to play in the healthy functioning of the democracy. Hence, there is
no doubt that electoral reforms are the need of the hour in order to attain sustainable
democratic India. The objective of electoral reforms is the distillation of General Will. There
must be no place for the criminals in the sacred electoral process of obtaining General Will.
Electoral system should be able to attract the best talent in the country. Elections should not be
seen as mere rituals but the pathways of democracy. Honesty shouldnt be a disincentive but
instead a reward in the electoral system. For a 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. Supreme
Court has also held that a free and fair election is a part of the basic structure of the Constitution.
There is an urgent need to break the criminal-political nexus. Unless some decisive action is
taken soon, the public will lose all faith in politics, politicians and democracy itself. This will do
irreparable damage to our republic.
SUGGESTION
After reviewing all the data relating to the problem of criminalization in political parties
following suggestion can be given:
First the citizens of India have to be aware about the right to information and their
constitutional rights as well. They must know about the candidates background who is
going to stand in elections.
25
The person against whom the charge sheet has been submitted for the offense punishable
with more than seven years should not be permitted to contest the election without the
permission of high court.
High penalty must be imposed upon the political parties, who give ticket to the criminal
persons to contest the election.
There should be like the persons who are interested to contest the election must disclose
their assets and that must be examined before filling the nomination paper.
Section 125A of the Representation of the People Act, 1951 should be amended by
substituting the words may extend to six months, or with fine, or with both with the
words shall not be less than two years, and shall also be liable to fine.30
And all other steps which are necessary and required or may remove or diminish this
problem of criminalization to some extent should be taken and implemented.
30
govt of India, recommendations by law commission of india, electoral disqualifications, report no.244, feb 2014,
the whole report available on http://www.lawcommissionofindia.nic.in
26
BIBLIOGRAPHY
Books:
1. J. N. Pandey, Constitutional Law of India, , 47th Edition , Central Law Agency
2. O.P.Tiwari, Election law
Acts:
1. Representation of people act, 1951
Websites:
1. http://www.webster.com
2. http://www.docstoc.com.
3. http://www.legalserviceindia.com
4. http://www.indiankanoon.com
5. http://www.lexisnexis.com.
6. http://www.jurisonline.in
7. http://www.ssrc.in
8. http://www.ssrn.in
27