Author: Lanet Divya V.
College: St. Joseph’s College of Law, Bangalore
To the Point
One of the key problems facing India’s democracy today is criminalisation of politics. This is where people who have some kind of a criminal record or pending criminal cases enter the process of politics and electioneering. They may contest elections, become members of the Parliament and the State Legislatures, and be part of the governance of the nation.
This is because the mere existence of a criminal case against a person does not necessarily mean that the person has committed a crime. Under the Constitution, every accused person is presumed innocent until proven guilty before a competent court of law. Thus, the mere existence of pending criminal cases cannot necessarily disqualify a person from contesting an election.
But the serious aspect of the problem arises where people with pending cases on account of serious crimes join politics.
Criminalization of politics is often related to the effect of money power, muscle power, and political influence. Sometimes, political parties may choose their candidates based on their strength in elections or on the basis that these candidates have the capability to win the election. In such circumstances, the choice of candidates could be made on the basis of ‘winnability’ rather than integrity, dedication to serve the public or merit.
This issue was discussed by the Supreme Court of India in many cases, and it was emphasized time and again that the transparency of elections should be ensured, and the right of voters to know the antecedents of the candidates must be kept in mind.
Thus, the criminalization of politics is not just a political issue but also a constitutional and legal issue of democracy, electoral transparency, accountability, and rule of law.
Legal Jargon
The problem of criminalisation of politics is linked with constitutional concepts like democracy, rule of law, free and fair election, etc.
The Constitution of India through Article 14 guarantees equality before law and equal protection of laws. It means that according to the principle of the rule of law, each one of us, even if he occupies a political office, should be subjected to the law.
Article 19(1)(a) provides for the fundamental right to freedom of speech and expression. The Supreme Court through its interpretation of this right has held that this includes the right of the voter to know the relevant facts about the contesting candidate in election.
According to Article 324 of the Constitution, the power of superintendence, direction and control over the election to Parliament and State Legislatures vest with the Election Commission of India. Thus, the Election Commission of India plays an important part in conducting the elections properly.
The qualifications and disqualifications for Members of Parliament and State Legislatures are provided for in Articles 102 and 191 of the Constitution respectively. These articles empower the Parliament to lay down other grounds of disqualification through legislation.
The Representation of the People Act, 1951 contains the legislation which lays down the rules about conducting elections. Under section 8, there is a provision regarding the disqualification of individuals due to their conviction of certain offenses. Therefore, a distinction is made between an individual who is charged and one who is convicted under the law.
The other principle of law which is relevant to this matter is the separation of powers. It is true that the judiciary can interpret the Constitution and the statutes passed but it cannot make entirely new grounds for disqualifications from elections where they have not been made by Parliament.
Constitutional morality is another concept which must be taken into consideration. Individuals who hold constitutional offices must behave in a manner which is consistent with the Constitution. This applies to political leaders also.
The Proof
The gravity of criminalization of politics can be appreciated from the continued concern of the judiciary and civil society about the participation of candidates with criminal backgrounds in election processes.
One of the serious concerns in this context is that merely informing does not stop political parties from choosing candidates with criminal records. Even if there is public information about any criminal proceedings pending against any candidate, political parties might choose him/her on the basis of his/her influence and resources.
The Supreme Court has highlighted the need for making sure that the electorate should be aware of the criminal records of the candidates. The need for disclosing criminal records to the voters is to make the electorate aware of the relevant facts.
Another significant issue is the delay in the trial process of the accused. Disqualification in the present legal context is often connected with the conviction in the situations which fall under Section 8 of the Representation of the People Act, 1951. The criminal proceedings take a long time to conclude, and during the period when they are in progress, the accused can actively engage in political elections, provided that he is not disqualified.
The Law Commission of India in its 244th report raised certain doubts about the sufficiency of disqualification after conviction. It discussed if disqualification from the time of framing of charges in serious criminal cases could be helpful in combating criminalisation of politics and also pointed to the necessity of speedy trials.
Political parties are also very important in this situation. The issue cannot be solved only with the help of courts and the Election Commission. Political parties have to take responsibility for candidates they choose. They should not see only the aspect of elector ability of the candidate.
The presence of criminals in politics continuously undermines public trust in democratic institutions. The representatives elected to office have the mandate to make the laws and take part in governance. This is why the participation of individuals accused of committing crimes is cause for concern.
Abstract
India is the largest democracy in the world, and the functioning of the democratic process in India depends on elections, which should be held in an honest manner, with transparency and effective political leadership. But the growing tendency of individuals with criminal records getting involved in election processes has emerged as a major problem for democratic governance and rule of law.
The criminalisation of politics can be defined as the involvement of individuals with criminal records in the political process, both in terms of contesting elections and joining the legislative bodies. The issue is complicated from the point of view of the law, since the individual accused of criminal offence cannot be regarded as guilty automatically.
However, the increased participation of candidates in criminal cases leads to questions about the integrity of the process and the loss of public confidence. The Constitution of India and the Representation of the People Act of 1951 contain the constitutional and legal framework on elections and disqualifications from elections. In addition, the Supreme Court of India has also been very instrumental in enhancing transparency in the election process by acknowledging the right of the voter to be aware of the background of the candidate.
This paper explores the legal and constitutional framework with regard to the criminalisation of politics in India. The focus of the paper is on the relevant constitutional provisions, Representation of the People Act, major judicial pronouncements and the role of political parties. The paper concludes that judicial interventions alone will not suffice to address the issue.
Case Laws
1.Union Of India (Uoi) vs Association for Democratic Reforms And … on 2 May, 2002
This case was a landmark decision with respect to electoral transparency. The Court held that there exists a basic right of people to get knowledge of candidates standing for elections.
The Court identified the right to be informed as emanating from the right to free speech and expression. An affidavit was to be taken from the candidate with regard to his/her criminal antecedents and other details.
This judgment served as a significant milestone towards making voters well-informed before going to polls.
2. People’s Union of Civil Liberties … vs Union of India & anr on 13 March, 2003
Here, the challenge raised by the People’s Union for Civil Liberties is to a law that imposed restrictions on disclosure of information that had been allowed in the ADR judgment.
It was found by the Supreme Court that the law was unconstitutional in nature insofar as it impacted the right of the voter to know. The right of the elector to seek relevant information regarding the candidate was treated as a part of the right to freedom of speech and expression.
This decision facilitated the availability of criminal antecedents of candidates to the public.
3. K.Prabhakaran vs P.Jayarajan on 11 January, 2005
In this case, the focus was on the ambit and object of Section 8 of the Representation of the People Act, 1951.
It was clarified in the Supreme Court judgment that the object of the disqualification for having a criminal antecedent is to avoid criminalization of politics. It was highlighted in the decision that people who have any criminal record should not be permitted to pollute the electoral system and such provisions ensure freedom in elections.
This case is highly relevant as here there is a direct connection between the provisions of the law regarding electoral disqualification and prevention of criminal influence in politics.
4. Lily Thomas vs Union of India & Ors on 10 July, 2013
In Lily Thomas v. Union of India, Section 8(4) of the Representation of the People Act, 1951 was under challenge in front of the Supreme Court.
This section granted sitting members a period of protection in case of a conviction against them when they appeal against their conviction. This section was declared unconstitutional in the Supreme Court judgment.
This decision reinforced the concept of automatic disqualification in cases covered by the law.
5. Manoj Narula vs Union of India on 27 August, 2014
In this case, the question was about whether there could be any disqualification of individuals having criminal antecedents or facing serious charges against them when appointing them as Ministers.
The Supreme Court said that judicial disqualification must be either constitutionally or statutorily prescribed. But at the same time, the Court stressed upon the importance of constitutional morality and the duty of the Prime Minister and Chief Ministers when selecting Ministers.
The Court noted that it was expected of constitutional functionaries to take into account the gravity of the criminal charge while discharging their duties. Thus, this case brought out the distinction between statutory disqualification and constitutional duty.
6. Public Interest Foundation vs Union of India on 25 September, 2018
This case is undoubtedly one of the landmark judgments in the realm of criminalisation of politics.
In this case, the Supreme Court deliberated on the issue whether persons who were seriously charged for offences should be automatically debarred from participating in election contests. While acknowledging the problem of criminalisation of politics, the court held that this cannot form a new criterion of disqualification.
The court noted that a legislation introducing a new disqualification is essentially a matter for the parliament. However, the court passed certain directions with the objective of achieving greater transparency and disclosure of criminal antecedents.
7. Rambabu Singh Thakur vs Sunil Arora on 13 February, 2020
This case was related to the compliance with the directions given by the Supreme Court regarding the disclosure of criminal antecedents.
The Court highlighted the importance of transparency in this matter and made it clear that non-compliance by political parties with the relevant directions should be brought to the notice of the Supreme Court.
The judgment helped in strengthening the implementation of the earlier directions regarding the disclosure of criminal antecedents.
Conclusion
The criminalisation of politics continues to remain one of the major challenges to the proper functioning of the democratic system in India. The growing participation of people having criminal records in the elections becomes a cause of concern in relation to matters of public trust, election transparency, and rule of law.
However, any attempt at legal reform would have to abide by the principle of the presumption of innocence. It is not possible to consider a person guilty solely on the basis of filing of a criminal case against him/her. Thus, the proposed reforms will have to strike a balance between individual rights and protection of democracy from criminal interference.
The judiciary has made its own contribution towards achieving this objective through various decisions such as Association for Democratic Reforms, PUCL, Lily Thomas, and Public Interest Foundation.
However, judicial action alone would not be sufficient to remove criminalization from the political arena. The Supreme Court has itself held that the introduction of further grounds of disqualification was a matter within the domain of Parliament.
Such reform needs to include a multi-pronged approach consisting of prompt trials, proper implementation of electoral laws, transparent selection of candidates, responsible behavior on part of political parties, and informed voters.
The political parties themselves should realize that the selection of candidates should not hinge upon their mere electability or ‘winnability.’ Democracy and the credibility of the process of selection of its representatives should carry the same weight.
It is, in the end, not only about the elections being held but also the quality of the public representatives that constitute democracy and the political system. Criminalization of politics thus becomes necessary for protecting the democratic principles enshrined in the Constitution.
FAQ
1. What is criminalisation of politics?
Criminalisation of politics refers to the increasing involvement of persons with criminal backgrounds or pending criminal cases in the political and electoral process.
2. Can an accused person contest elections?
Yes. A person with a pending criminal case can generally contest an election unless they are disqualified under the Constitution or the Representation of the People Act, 1951.
3. What is the voter’s right to know?
The voter’s right to know allows citizens to obtain relevant information about candidates, including their criminal antecedents, so that they can make informed electoral choices.
4. How can criminalisation of politics be reduced?
It can be reduced through greater transparency, speedy disposal of criminal cases, responsible candidate selection by political parties and effective electoral reforms.
