Sarat Chandra IAS Academy

Sarat Chandra IAS Academy UPSC Civils Daily Mains Question 05th July -2021

De-Criminalisation of politics is needed to bring back the glory of Indian Democratic System. In this context discuss the reasons for criminalisation of politics and mention some landmark judgements pertaining to criminalization of politics.
Introduction: Here Introduction should be simple and direct, just define what is criminalization of politics with some supporting data from any institution or organization. Criminalization of Politics means that the criminals entering the politics and contesting elections and even getting elected to the Parliament and state legislature.
The recent report by the Association for Democratic Reforms (ADR) has highlighted the urgency of the issue. The report stated that:
• 46% of elected MPs of Lok Sabha have different kinds of criminal cases pending against them
including minor offences like “Unlawful assembly” and “Defamation”.

• 24% of MPs in the present Lok Sabha the cases were of a very serious in nature such as crimes against women and kidnapping.

Body: the body should be what question demands you to write; here in this case you should state what the reasons for criminalization of politics are and some landmark judgements related to criminalization of politics
Reasons why criminalization of politics still persist in India:
• Lack of political will:
o Representation of the People Act, 1951, deals with disqualification of candidates against whom charges have been framed in court for serious offences. Therefore, in order to curb criminalization of politics, Parliament needs to bring an amendment in the Act

• Vote Bank:
o The political parties and independent candidates have astronomical expenditure for vote buying and other illegitimate purposes through these criminals.

• Denial of Justice and Rule of Law:
o Toothless laws against convicted criminals standing for elections further encourage this process. Under current law, only people who have been convicted at least on two counts be debarred from becoming candidates. This leaves the field open for charge sheeted criminals, many of whom are habitual offenders.

o Constitution does not specify what disqualifies an individual from contesting in an election to a legislature.

o It is the Representation of People Act which specifies what can disqualify an individual from contesting an election. The law does not bar individuals who have criminal cases pending against them from contesting elections

• Lack of good governance:
o The root of the problem lies in the country’s poor governance capacity.

• Lack of Choices:
o Sometimes voters are left with no options, as all competing candidates have criminal records.

• Scarcity of state capacity:
o The scarcity of state capacity is the reason for the public preferring ‘strongmen’ who can employ the required pulls and triggers to get things done. 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. No political party is free of this problem.

o Use of muscle power along with money power is a weapon used by all political parties to maximize electoral gains.

o With cases dragging in courts for years, a disqualification based on conviction becomes ineffective. Low conviction rates in such cases compounds the problem; voters don’t mind electing candidates facing criminal cases. Voter behavior then emboldens political parties to give tickets to such candidates who can win an election on their ticket etc.

Recently, the Supreme Court agreed to examine a proposition made by the Election Commission of India (ECI) to ask political parties to not give the ticket to those with criminal antecedents.

Over the years, the Supreme Court has passed many judgements that sought to curb criminalisation of politics, but the extent of the problem has not been eliminated.
Landmark Judgments to decriminalize the politics:
o Upcoming Bihar elections in October 2020, will be the first election where the Supreme Court’s decision (given in February 2020) that requires political parties to publish the entire criminal history of their candidates for elections along with the reasons to field such suspected criminals, will be implemented.

o This judgement also requires such information mandatorily be published in a local and national newspaper as well as the parties’ social media handles.

o While the judgment may have far-reaching consequences for curbing criminalisation of politics, yet still a lot has to be done to make a cleaner electoral process in India.
o The Supreme Court in Public Interest Foundation vs. Union of India, 2018 had directed political parties to publish online the pending criminal cases of their candidates.

o The Supreme Court concluded that rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” the political parties.

o It suggested that Parliament frame a law that makes it obligatory for political parties to remove leaders charged with “heinous and grievous” crimes like rape, murder and kidnapping and refuse ticket to offenders in both Parliamentary and Assembly polls.

o In 2017, it asked the Centre to frame a scheme to appoint special courts to exclusively try cases against politicians, and for political parties to publicise pending criminal cases faced by their candidates in 2018.

o In 2013, the Supreme Court in the case Lily Thomas vs. Union of India ruled that a sitting MP and MLA convicted of a jail term of two years or more would lose their seat in the legislature immediately.

o Further, Section 8(4) of the Representation of the People Act 1951, which allowed elected representatives three months to appeal their conviction, was declared unconstitutional.

o The Supreme Court held that, if a lower court has convicted an individual, he cannot contest an election unless a higher court has overturned his conviction. Simply filing an appeal against the judgment of the lower court is not enough.

o The Supreme Court in People’s Union for Civil Liberties vs. Union of India, 2013 ruled that voters should have the option of “None of the above (NOTA)” on the Electronic Voting Machines (EVMs) to ensure the option for those who don’t find any candidate suitable.

o The Supreme Court directed the Election Commission to bring the issue of election- related ‘freebies’ under the ambit of the Code of Conduct.

There are several judicial pronouncements and legislations to curb the criminal’s entry into politics but the lacunae still exists in their implementation. Only enhanced awareness and increased democratic participation could create the right conditions for the decriminalisation of politics
Additional notes regarding:
Effect of Criminalisation of Politics
o Against the Principle of Free and Fair Election: Using money and muscle power in elections, limits the choice of voters to elect a suitable candidate. Also, it is against the ethos of free and fair election which is the bedrock of a democracy.

o Affecting Good Governance: The major problem is that the law-breakers become law-makers, this affects the efficacy of the democratic process in delivering good governance. These unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.

o Affecting Integrity of Public Servants: It also leads to increased circulation of black money during and after elections, which in turn increases corruption in society and affects the working of public servants.

o Causes Social Disharmony: It introduces a culture of violence in society and sets a bad precedent for
the youth to follow and reduces people’s faith in democracy as a system of governance.

o Election Commission has limited powers to legislate on such laws.

o Public opinion too is not firm on the issue.

o A survey found that opinion was divided when people were asked whether they would vote for an honest candidate who may not get their work done, or a tainted candidate who could get their work done. While political parties raise concern about candidates with a tainted background contesting elections, none of them come forward to set an example for others when it is time to act.

o In the present criminal justice system it takes years, probably decades, to complete the trial against a politician. Those with political influence have taken full advantage by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions to stall any progress. They also engage in corruption and infect the bureaucracy and the police.

Way Forward
o State Funding of Election: Various committees (Dinesh Goswami, Inderjeet Committee) on the electoral reforms have recommended for state funding of elections. State funding of elections will curb use of black money to a large extent and thereby will have a significant impact on limiting criminalization of politics.

o Strengthening of Election Commission: Election Commission can register a political party but cannot deregister it. Regulating the affairs of a political party is essential for a cleaner electoral process. Therefore, it is imperative to strengthen the election commission.
o Behavioural Change: Until the citizens realise that people who bribe them for votes cannot be trusted and it will be to their ultimate disadvantage, the efforts to curb criminalisation of politics will have limited impact. Thus, voters also need to be vigilant about misuse of money, gifts and other inducements during elections. Further, seeing a behavioral change amongst voters, political parties will be forced to field candidates with a clean background.

o Law panel report bats for using the time of the framing of charges to initiate disqualification as an appropriate measure to curb the criminalization of politics.

o Political parties should themselves refuse tickets to the tainted.

o The RPA Act should be amended to debar persons against whom cases of a heinous nature are pending from contesting elections.

o Bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters The Election Commission of India (ECI) should have the power to audit the financial accounts of political parties, or political parties’ finances should be brought under the right to information (RTI) law

o Broader governance will have to improve for voters to reduce the reliance on criminal politicians.

o Fast-track courts are necessary because politicians are able to delay the judicial process and serve for decades before prosecution.

o The Election Commission must take adequate measures to break the nexus between the criminals and the politicians. The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts and so on in their nomination papers is a step in the right direction if it applied properly.

o Addressing the entire value chain of the electoral system will be the key to solving the puzzle of minimizing criminal elements from getting elected to our legislatures. This process would involve sensitizing the electorate about the role and responsibility of the elected representatives.

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