“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice”. This very quote by the Charles-Louis from the Spirit of laws captures the essence of this article in entirety. It’s not a new fact that the political system in the country is pervaded by a countless number of criminals. A submission made to the Supreme Court by the senior advocate Vijay Hansaria in 2020 has revealed the number of sitting legislators who face criminal cases, with the data showing that a massive 2,556 MLAs and MPs from 22 states are accused in cases. If former MPs and MLAs from these states are also considered, the number rises to 4,442.
The governance delivered by these criminal politicians contradicts the prevailing principles of good governance in a democratic system. These politicians use their discretionary powers in the allocation of public resources to engage in corrupt activities that enrich them or their benefactors. Therefore, they are often involved in embezzling public resources or allocating the public resources to private parties for their refinement or development. They tend to treat public resources as their personal assets and use them to engage in various criminal activities. The situation is alarming and needs to be controlled before it goes out of hand and threatens the future development of this country.
One of the earliest Committee formed on this issue was the Vohra Committee in 1993. It was constituted to identify the extent of the political-criminal nexus and to suggest ways to deal with the criminalization in politics.
The report of this Committee discussed:
- how the criminal gangs enjoyed the support of the politicians who under the veil of government functionaries gave protection to them.
- how political leaders have become gang leaders and criminals have been elected to Parliament, State Assemblies, and local bodies over the years.
The Supreme Court in the case of Shri Dinesh Trivedi, M.P. & Ors v. Union of India & Ors. said for the appointment of another high-level committee for ensuring in-depth investigation on the findings of the Vohra Committee.
Specific Laws related to disqualification of criminals
Although the Constitution is silent on the disqualification of criminals but the Representation of People’s Act does have some satisfactory provisions. Section 8 of the Representation of People’s Act provides that an individual who was punished with imprisonment for more than 2 years cannot stand in an election for at least 6 years after the jail term but there’s no such bar on candidates facing trial, no matter how serious the charges are, they are not restricted from contesting elections. The fact that the cases are dragged in the courts for years makes Section 8 almost ineffective.
Section 4A of the Conduct of Election Rules, 1961 mandates the filing of an affidavit which includes the candidate’s information of any conviction of offences or pending case where charges have been framed by the court. Section 125A of the Representation of People’s Actprescribes penalties for withholding or providing incorrect information which amounts to a maximum six months imprisonment, or fine, or both.
The Election Commission of India also made some recommendations in its report on the Proposed Election Reforms in the year 2004 to seriously tackle this issue. The recommendations were:
- Section 125 of the Representation of People’s Act should be amended to provide more stringent punishment for concealing or providing wrong information. The punishment should be minimum of two years imprisonment and the alternative punishment of fine should be removed.
- It was also recommended to amend Form 26 as such to include all items of additional affidavit as well as to add a column where the candidates would have to disclose their annual income for the purpose of tax including their profession.
- The most important recommendation was to make an amendment in the Representation of People’s Act, 1951 to insert a new section that should make a declaration of assets and the criminal cases pending against the candidate. It should be made mandatory for the membership to the houses.
The Law Commission in its report on electoral disqualification in 2014 examined this issue. It was of the opinion that the disqualification at the stage of charging, if accompanied by substantial legal safeguards to prevent misuse has significant potential in curbing the spread of criminalisation in politics.” The commission specified that the criminal offences which have a maximum punishment of five years or more are to be included in this provision.
The charges filed up to one year before the date of scrutiny of nominations would not lead to disqualification. This safeguard will then minimise politically motivated cases that can be filed against an individual before an upcoming election. It also suggested that in the case charges framed against sitting MPs/MLAs, the trial should be conducted on regular basis and completed within a year. The election commission in its 2016 agreed to these recommendations.
Case Laws related to disqualification of criminals
In the year 2013, in the case of Lily Thomas vs. Union of India, the Supreme Court passed a landmark judgement stating that any sitting MP and MLA will lose their seat if convicted of a crime and punishment with minimum 2 years of imprisonment. Thus, this judgement quashed the Section 8(4) of the Representation of People’s Act which allowed three months to appeal their conviction. Many MPs and MLAs lost their seat due this including Rasheed Masood, Jayalalitha, Lalu Singh Yadav etc.
In 2015, in the case of Supreme Court Advocates Association and another vs. Union of India, the Supreme Court directed the centre to set up special fast-track courts to deal with the pending cases against the sitting politicians. These special courts act as time-bound and exclusive judicial mechanism to expedite the trials involving politicians.
In 2018, in the case of Public Interest Foundation v. Union of India, the Supreme Court said that it cannot disqualify candidates based on criminal charges from contesting election as there’s no such rule but itasked the Parliament to make a law that prevents candidates accused of serious crimes from entering politics. The bench concluded that informed choice is a cornerstone of a ‘pure and strong’ democracy.
The Supreme Court in 2020 in the case of Rambabu Singh Thakur v. Sunil Arora and Ors. ordered the political parties to publish their candidate’s previous detailed criminal records before elections. This publication should be on social media sites, party’s official website, one national newspaper and one local newspaper. The order also specifically asked the parties detailed reasons within 48 hours of the selection of candidates which should be published by the parties as to what made them select the candidates having criminal records over other candidates.
Analysis of the Situation
The analysis of the self-sworn affidavits of 542 of 543 winners in the 2014 Lok Sabha elections showed that a candidate with a criminal background was almost twice as likely to win than a candidate with no criminal background. The winning chances of a tainted candidate were 13% while those of a clean candidate were just 5%. These results clearly indicate the fact that people feel legislators with criminal backgrounds are powerful who will get work done from bureaucracy-infested government offices or by use of money.
In fact, corruption among politicians is something that the candidates wear as a badge of honour. The boastful claims among the candidates about who is the “biggest criminal” are common. Another reason why criminality thrives in the political system, according to analysts, is because of prolonged trials in court and lower conviction rates. However, neither the approach of the various committees nor the creation of special courts can work in isolation because they do not target the root of the problem. Data suggests that voters don’t mind electing candidates who are facing criminal cases. Addressing the entire value chain of the electoral system may be the key to solving this menace. This process would involve acquainting the electorate about the role and responsibility of the elected representatives.
Currently, a large part of the voting population views their representatives as their problem solvers. So, they are willing to vote for a candidate who can get things done in any way possible while ignoring his involvement in a crime. Viewing the MPs and MLAs as lawmakers will slowly change their perception of what they want from their representative. The realization of the fact that lawbreakers cannot be lawmakers can be an awakening truth for them. This then requires a fresh pool of candidates who can appeal to the voters by their abilities as good lawmakers with genuine ideas. Political parties would then be pressured to give tickets to individuals who can win elections without having criminal cases against them. All of these steps will have to work in parallel and simultaneously to remove the scourge of criminalisation of politics.