1. Introduction: (00:08)

Hello, everyone! My name is Shivani Kapoor and I am a Program Officer at ADR. Welcome to the 11^th episode of our podcast series. This episode will focus on “Increasing criminality in politics: Present legal and constitutional provisions, recent Supreme Court judgments, critical analysis and recommended reforms.”

1. Background and over-view: (00:29)

 

It is a fundamental right of citizens to have free and fair elections. Free and fair elections entail fairness, freedom, equality, integrity, honesty, credibility and above all a system where citizen’s interests and well-being are of paramount importance.  This fundamental principal, however, has become skewed with the failing standards of ethical and moral propriety of India’s parliamentary democracy. Criminal elements have been playing a major role in the electoral process in India both as candidates for elections and as party workers. Having a Parliamentarian who is charged with a serious criminal case is not only immoral and unethical but the while notion is so abhorrent and hideous. It is after all the electorate, which has to suffer on account of “criminalization of politics” and often can do little but helplessly participate in the election of the mighty and moneyed criminal elements.

 

1. SC directions and why such directions are not enough? (01:40)

 

1. On 13^th February, 2020 the Supreme Court had directed political parties to list out reasons on their website including their social media platforms for nominating candidates with criminal background within 72 hours of the selection of such candidates.
2. On 25 September, 2018 the Supreme Court had directed political parties and candidates with criminal antecedents to publish the details of their criminal cases at least on three different dates from the date following the last date of withdrawal of candidatures and upto two days before the date of poll.

• On 1^st November, 2017 the Supreme Court had ordered setting up of Special Courts to deal with 1581 cases involving MPs and MLAs as declared at the time of filing of the nomination papers for the 2014 elections. Eleven states have set up 12 special courts. There are two in Delhi and one each in Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar West Bengal, Maharashtra and Madhya Pradesh.

1. On 10th March, 2014 Supreme Court directed all High Courts to set up fast-track courts to conclude trial against sitting MPs and MLAs who have charges framed against them for the offences specified under Section 8(1), 8(2) and 8(3) of the RP Act, within one year from the date of the framing of charge(s).

 

Whereas the recent pronouncements by the Supreme Court are surely aimed at reforming our electoral and political process, however, these directions can only be termed as a step towards making our so-called politicians and parties conscious of their actions or to give voters a chance to make an informed choice. History has echoed quiet audibly that political parties or politicians have no conscience. Moreover, wasn’t it done way back in 2002/2003 when affidavits requiring details of criminal, financial and educational background of the candidates contesting elections (Form 26) were introduced for the first time through a petition filed by Association for Democratic Reforms? Politicians are not even diligently or properly furnishing each and every information as required under Form 26 or without constant reminders and warnings by the Election Commission of India. The doors of Supreme Court have been knocked innumerable times in the past so that candidates start taking Form 26 seriously. Even in relation to the recent SC order dated 25^th September, 2018 on publication of criminal cases, political parties have not taken these orders very seriously. On 13^th February, 2020, the Supreme Court in a contempt petition had reprimanded political parties for failing to widely publish the details of criminal cases pending against the candidates selected by them. The Supreme Court in its directions had also specifically instructed political parties to give reasons for such selection and why other individuals without criminal antecedents could not be selected as candidates. As per these mandatory guidelines, the reasons for such selection has to be with reference to qualifications, achievements and merit of the candidate concerned. Sadly, even these directions of the Supreme Court have had no effect on the political parties in selection of candidates as they have again followed their old practice of giving tickets to around 32% candidates with criminal cases. All major parties contesting in Bihar Assembly elections, 2020 have given tickets to 37 % to 70% candidates who have declared criminal cases against themselves. In MP, UP & Gujarat Bye-elections around 18% candidates have declared criminal cases against themselves. Most of the parties have justified fielding of such tainted candidates with unfounded and baseless reasons like chances of winning, popularity of the person, does good social work, cases are politically motivated. In addition, only four political parties namely JDU, INC, CPI(ML) and RJD out of 187, have listed the reasons for fielding candidates with criminal background. Some political parties do not even have a website. (status as of 29^th oct. Update to be checked with Bipasha). This is the psyche of our political class. 

 

1. Magnitude of problem: (06:50)

 

The fundamental reason why candidates with money and muscle power are able to dominate politics is because no political party has seriously pursued electoral and political party reforms. It effects their self-seeking goals which they clearly don’t want. An estranged voter, meanwhile has either been isolated or become cynical and no longer really expects good governance. As per the data analysed by Association for Democratic Reforms, 43% of the current Lok Sabha MPs have declared cases against them and 29% have declared serious criminal cases. 24% Rajya Sabha MPs have declared criminal cases out of which 12% have declared serious criminal cases against them. There are 11 MPs who have declared cases relating to murder, 33 have cases related to attempt to murder. There are 8 MPs who have declared cases related to kidnapping and 13 related to robbery. Our MLAs are also not far behind in this race. We have 45 MLAs who have declared cases related to murder whereas 181 have declared cases related to attempt to murder. There are 49 MLAs accused of kidnapping. Even for Bihar Assembly elections, 2020, 32% candidates have declared criminal cases against themselves.

 

As per the report released by ADR on ‘Crimes against Women’ from 2009 to 2019, there was an increase of 231% in the number of candidates contesting in Lok Sabha Elections with declared cases of crime against women. From 2009 to 2019, there was an increase of 850% in the number of MPs with declared cases of crime against women in Lok Sabha. There are 18 MPs and 58 MLAs who have declared cases related to crimes against women. We have 3 MPs and 6 MLAs who have declared cases related to rape. During the period 2009-2019,73 candidates had declared cases related to murder (IPC Section-302) against themselves while 278 candidates had declared cases related to Attempt to murder (IPC Section-307).

 

1. Reasons behind increasing criminality in politics: (09 :18)

• . It is a known fact that office bearers like President, General Secretary, Vice- President etc. are the main decision makers of political parties and have a major say in the allocation of tickets to candidates to contest elections.

 

• There is no well-defined process in the selection of candidates by the political parties. Tickets are given to the candidates for contesting elections on the sole basis of winnability factor. Historically, it has been observed that muscle power and money power make a winning combination. Therefore, candidates with criminal background quiet easily make their foray into the Lok Sabha and State Assembly elections as political parties do not hesitate in giving tickets to such candidates.

 

• There is no law for regulating the functioning of political parties. There is no way to penalize the office bearers of the political parties in case of any conflict or contravention with rules or laws.

 

• Political parties have blatantly refused to come under the ambit of RTI law. Bringing parties under RTI law will not only empower the citizens to question, audit, review, examine, and assess information like inner party elections, criteria for ticket distribution but it will also allow people to seek definite and direct answers from the office bearers for the kind of candidates being fielded by our political parties.

 

1. Why there is an immediate need to completely ban the entry of such tainted candidates: (11:00)

 

• Politicians are undeniably powerful people. The nexus between politicians, bureaucrats and criminal elements in our society has been on the rise, the adverse effects of which are increasingly being felt on various aspects of social life in India. Such a strong criminal-political-bureaucratic nexus in our electoral and political process cannot be confronted by mere hypothetical hopes.  Conviction rate under our judicial system has been falling over the years.  More importantly, the time taken for trials is unduly long.

 

• The present law i.e. section 8 of the Representation of People Act, 1951 and the repeated orders issued by courts have not been able to deter criminal elements from occupying high elective offices as MPs and MLAs. The result is that the law breakers have become law makers.  Needless to say, this state of affair has corroded the vitals of democracy in India.

 

• Functioning of our political class can only be regulated by adopting stringent measures. Mere warnings will not help the cause. Problem of criminalization can be tackled if such tainted candidates are outrightly banned from entering the electoral process based on both stage and degree of crime. This can be achieved by disqualifying candidates against whom ‘charges have been framed by court’ for offences punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question. It is a known fact that reforms cannot be left to the wisdom of our leaders. Even in 2015 the Supreme Court had left it to the wisdom of Prime Ministers and Chief Ministers of the State to not appoint ministers in their cabinet with criminal background. Since 2015, the crime rate in the legislative offices has only escalated further. Recently, the Madras High Court has not only asked the Central Government to “enact a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures” but has also emphasized that “the Central Government has to come out with a comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State Legislatures and local bodies”.

 

• Under Section 228 of the Cr.p.c, 1973, charge is framed by the court only after application of mind by a judge. In a trial, charges are famed only after consideration of opinion given by the police and when the Judge is of the opinion that there is ground for presumption that the accused has committed an offence. It may be noted that both prosecutor and the accused person are heard by the court in the process. Therefore, is it not a stage where his/her integrity should be questioned? Is it not a stage where the person has come in conflict with law, and if so, is it desirable in a country governed by rule of law to entrust the executive power with such a person who is already in conflict with law?

 

• Let’s face it; the Executive and the Legislature are most reluctant to undertake any kind of electoral or political reform because of the obvious bias and prejudice. It is only persons of strong character and vision that should foray into the electoral process. Only people who are honest capable and men of character and integrity, should contest elections and be the key policy makers. Sadly, in Indian Political System, such stipulation holds no ground. As a matter of fact, the political establishments have completely disregarded or intentionally side-lined the reforms suggested by various committees, citizens and civil societies. It is on record that various recommendations given by several committees dated as back as 1999 are lying in the back burner. Vohra Committee Report, 1993; The 170^th Report of Law Commission of India on Reforms of the Electoral Laws (1999); National Commission to Review the Working of the Constitution, 2000; The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (2007); Ethics in Governance Report: Second Administrative Reforms Commission,2007; The 244^th Law Commission of India Report on Electoral Disqualification; Justice J.S Verma Committee Report on Criminal Law Amendment; are few of these Commissions which had repeatedly emphasized the need to weed out criminal elements from politics but have been quiet conveniently overlooked by various governments in the last 20 years.

 

• Setting up of special courts, fast-track courts, all this infrastructure requires money. As per the data available in the website of ‘Department of Justice’ the total amount spent by Government of India for operational expenses of such Special courts for Financial Year 2019-20 was Rs 22,750,000 for Andhra Pradesh, West Bengal, Karnataka, Madhya Pradesh, Uttar Pradesh, Tamil Nadu and Telangana. It is high time that we do some pondering and realize that instead of spending tax payers hard earned money to reform the society and country at large, the governments, past and present; the institutions and authorities, who have taken an oath to uphold the ‘Rule of Law’ are rather busy in spending this hard earned money to further the greed of our leaders and parties, one way or the other. Why should we be concerned about setting up of such courts and related infrastructure when it would be simpler to just ban the entry of ‘muscle and mafia’ in the first place?  Besides, there is no information about the status or outcome of such pending cases.

 

• Finally, Fast track and Special courts exclusively meant to deal with cases against MPs/MLAs undeniably disregard the plight, adversities and miseries that the under-trials are being subjected to since the inception of criminal jurisprudence. Isn’t such a special treatment by creating Fast-track/Special Courts against the principles of ‘Rule of Law’, ‘Equal Protection of Laws’ and ‘Right to Equality’? In July, 2019 five Kashmiri prisoners were released by Rajasthan High Court after 23 years of imprisonment without any bail or parole. This is just one incident. As per a report released by Hindustan times, two of three prisoners in Indian jails are under-trials. How can this be a solution where only a tax paying law-abiding common man is at the receiving end. Isn’t it guarding the high and mighty?

 

1. Immediate need of the hour: (18:20)

• The former British Prime Minister John Major was once asked to “list the circumstances which render Ministers unsuitable to retain office.” His written reply given to the House of Commons on 25th January, 1994 was: “There can be a variety of circumstances but the main criterion should be whether the Minister can continue to perform the duties of office effectively.

 

• There is no dearth of solutions to curb the ever-growing problem of criminality in politics. What is required is the courage and will to do the same. Law makers will not frame laws that ban their unimpeded and unchecked entry. Constitutional bodies and institutions will continue to take refuge under reasons like ‘lack of power’. Meanwhile, political parties who do not shy away from playing blame- game kind of dirty politics will always stand united and determined on stalling any attempt in the light of accountability, transparency and fairness in our electoral process. At this juncture, it not only becomes a prophetic duty of the courts to remind the key duty holders of their role, but it is also their constitutional prerogative to make sure that such duties are discharged diligently by preserving, protecting and defending the Constitution. The only way to remedy the existing problem of criminalization is to immediately act upon the plausible solutions offered by various committees, civil society and citizens. Supreme Court of India being the ultimate custodian of “Justice and Rule of Law” should reprimand political parties and politicians for their complete lack of will, reprehensible predilection and absence of required laws. Let there be another Lily Thomas verdict when convicted MPs and MLAs were disqualified from holding membership. Therefore, without losing another twenty years, the Supreme Court should immediately order;

 

• Permanent disqualification of candidates convicted for heinous crimes like murder, rape, smuggling, dacoity, kidnapping etc.
• Disqualification of persons from contesting elections to the public offices against whom charges have been framed for having committed serious criminal offences punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question.
• Cancellation of tax exemptions given to the political parties who field such tainted candidates.
• Bringing political parties under the Right to Information Act.
• De-register and de-recognise any political party if it knowingly puts up a candidate with a tainted background.
• Political party should annually file the information on criminal antecedents of their Office Bearers and make such records available to the public, including NIL records.
• Disqualification of candidates furnishing false information in the election affidavit (Form 26).
• Ensure trial of cases in which the politicians are accused to be concluded in a time bound manner.
• Implementation of SC judgment dated 23rd September, 2013 (i.e provision of NOTA buttons on the EVMs) in its letter and spirit by ensuring a) if NOTA gets more votes than any of the candidates, none of the candidates should be declared elected, and a fresh election should be held; b) in the fresh election, none of the candidates in the earlier election, in which NOTA got the highest number of votes, should be allowed to contest.

 

1. Conclusion: (22:18)

 

Statement of Sir Winston Churchill which is as follows: -

 

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

 

That’s all for today’s episode. I hope you all found this useful and interesting. If you like our work, make sure you subscribe to the podcast on our website: adrindia.org and don’t forget to write to us at [email protected] with your feedback. We will be back in two weeks with another amazing episode. Please stay tuned and thank you for listening.

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