By Trishala Sanyal
Editor’s Note: Several government-appointed Commissions have already made clear recommendations for electoral reforms, but the political will to implement these recommendations in letter and spirit is lacking. We have allowed criminalisation in politics to go completely unchecked. This paper briefly makes a critical analysis on this issue.
“The function of the Parliament is not to govern but to criticize. Its criticism is directed not so much towards a fundamental modification of the governmental policy as towards education of public opinion.” – Invor Jennings[i].
The preamble of the Indian Constitution starts with “We the people of India” inculcating the spirit of democracy in the minds of every Indian. India is such a populous country that it ranks amongst the top 10 most populated countries. Taking into consideration India’s humongous geographical area and demographic nature it is practically impossible for the country to follow the norms of absolute democracy. Therefore in India there is a concept of “Representative Government” which was given by John Stuart Mill. According to the concept instead of an individual person a group of persons are elected who are required to represent vicariously the aspirations and concerns of the people.
India as a Representative Government is so large and active each time that the speaker of US Congress Sam Rayburn has remarked- “Congress is the highest theatre that anyone plays in upon this earth today. But these persons had not seen the Parliament of India and its State Legislature in action”[ii] With such a gargantuan parliament it is impossible to elect every member who would be as innocent as a sheep.
De-criminalization is something which is much debated these days. De-criminalization simply means legislation that makes something legal that was formerly illegal. The makers of the constitution while drafting had laid down certain restrictions for the persons while being chosen for either house of the parliament be it Legislative Assembly or Legislative Council. Article 102 and 191 of the Indian constitution deals with the provision regarding the disqualification for membership of the Parliament or State Legislative Assembly.
The Representation of Peoples Act, 1951 which was enacted by the provisional parliament before the 1st general elections Act was enacted under Article 379 of Indian Constitution which deals specifically with the people to represent themselves in the elections. Sir Bertrand Russellhas rightly said, “Our great democracies still tend to think that a stupid man is likely to be an honest man than a clever man”.
The Representation of the People Act, 1951 was enacted by the Parliament of India “to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections”[iii].
The main issue regarding the Representation of Peoples Act, 1951 is its particular chapters regarding disqualification. The act was amended several times but one of the notable amendments is the Representation of the People(Amendment) Act, 1966 which abolished the election tribunals and transferred the election petitions to the high court’s whose orders can be appealed to Supreme Court.
The Act provides a good definition of the term “Disqualification” in its section 7(b) as “disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.”. But the most heated and controversial section of the Act 1951 is the section 8 which lays down the grounds for disqualification of political criminals on the grounds of conviction. This section is divided into 4 sub-sections wherein the first three sections states that if a person is convicted for more than 2 years for the crimes mentioned in these sections would stand disqualified for the period of six years from the date of conviction to contest elections.
Courts also have interpreted and laid down the importance of this section in the case of K. Prabhakaran v. P. Jayarajan[iv]. It was stated in the case that the reason why this section has been added into the representation of peoples act is to prevent criminalization and keep persons with criminal background away from law and ensure that those who are always involved in breaking laws must not get the chance to make laws. The court in this judgment also clarified the Section 8(3)[v], that the person getting convicted for period of less than two years several times will also stand disqualified if that time adds up to 2 years.
With the inclusion of this act’s section 8(4) the MPs and MLAs have got a protective shield to continue in their posts, provided they had appealed or filed an application for revision against their conviction in higher courts within three months from the date of conviction. Sub-section 4 of Section 8 of the Act, 1951 is an exception carved out from sub-sections (1), (2) and (3). The provision of this section states that notwithstanding anything in the sub-section (1), (2) and (3) the disqualification would not be taken into consideration in case of a person who on the date of conviction was the member of the Parliament.
This section was declared as intra vires and just an exception to the Section 8 of the Act 1951 in the case of K. Prabhakaran v. P Jayarajan[vi]. Constitution Bench of the Supreme Court, on January 11, 2005, in the K. Prabhakaran vs. P. Jayarajan case had stated that these two groups of people (those who are convicted before the poll and those convicted while being MPs and MLAs) are totally different and well defined groups and this division cannot be held as unreasonable. In the K. Prabhakaran case it was held that the main purpose behind creating the section 8(4) is not to provide any immunity to the candidates but to protect the house. If the member of the house is convicted and given imprisonment then he will have to forfeit his membership of the house which will decrease the strength of the party to which it belong and also will make the party unstable.
The members of the legislature are expected and directed to represent vicariously the aspirations and concerns of the people whom they represent. Hence it is important for the legislature of a representative democracy to be a true reflection of the aspirations and dreams of the people and also to be fair, honest and accountable to the people they represent. But nowadays India is witnessing a crisis of empathy, quality, fairness, equality etc. amongst all the chosen MPs or MLAs. Not only is there a serious question of propriety lying over the fairness of electoral procedure followed, an even greater concern lies in the kind of people who are entering the polity of India. India stands witness to an alarmingly high number of people with criminal background who have polluted Indian polity. Though it has been almost 6 decades since India’s first ever General Elections, the existing electoral laws have failed in more ways than one to prevent the menace of criminalization in Indian politics
But recently in 2005 whenLily Thomas and an NGO Lok Prahari filed a Public Interest Litigation questioning the validity of Section 8(4), the Supreme court in July 2013 passed a judgment which was exact opposite to what was decided 8 years back. By a division bench of the Supreme Court, comprising of Justice A. K. Patnaik and Justice S. J. Mukhopadhya, in a judgment delivered by Justice Patnaik, section 8(4) of the Representation of People Act, 1951 was struck down as unconstitutional being beyond the legislative competence of the Parliament. This sub section of Act 1951 was stated as ultra vires the constitution. Fali Nariman, who argued the case for the petitioner, argued, among other things that the Parliament is not constitutionally competent to enact section 8(4). T
he court held that there is no provision in Articles 102 and 191 of the Constitution which confers power on Parliament to make a provision to protect sitting members from the disqualifications, it also said that the parliament lacks legislative power to enact section 8 (4) of the Act and therefore it is ultra vires to the Constitution. Further, the court relied on the Constitutional Bench’s decision in Election Commission of India v. Saka Venkata Rao[vii], wherein it was held that there will be same set of disqualification for election as well as for continuing as member and so the parliament does not have power to make different laws for a person to be disqualified under section 8(4) of the Representation of Peoples Act 1951.
Our constitution has a very important article which provides equality to all. Article 14 of the Indian constitution is about Equality before law meaning thereby that all are equal in the eyes of all. Stressing on the last four words “In the eyes of law” is it then justified to give a different protection to the sitting MPs or MLAs with respect to other MPs or MLAs who are currently not in power? The judgment in 2005 wherein Section 8(4) was stated as intra vires the constitution was a clear violation of right to equality guaranteed by the Indian constitution as in one case you are providing immunity to politicians falling under sub-section 4 of section 8 whereas others were given no immunity who were in the sub-sections 1, 2, or 3. Judgment in the Lily Thomas case[viii] thus becomes more important in this respect that it establishes a equality too while stating 8(4) as ultra vires the constitution.
Before going into the issue of De-criminalization, let us first examine the Why and How of criminalization. As to how criminals enter the political fields and what is their motive behind this. And also we will examine that who, the people or the parties, is responsible for the criminalization.
The main reason why criminals enter politics is because it is in the interest of the political parties. These criminals have all sort of power, money, resources which are well enough to help the party win over other parties. The reason why all politicians spoke in unison in favour of the judgment of K. Prabhakaran[ix] is that this would provide them a shield with which they will stand safe even if they have a serious crime charged. Vohra Committee Report[x] on Criminalization of Politics which was constituted to identify the extent of the politician-criminal nexus stated that the connection between criminals, politicians and police and bureaucracy is now almost clear in all parts of the country and also said that these political leaders get elected to local bodies by becoming the leaders of gangs/senas.
In the year 2009 wherein the 15th General Elections for the Lok Sabha were to be held it was found that among the 7810 out of 8070 candidates whose affidavits were considered, 1158 candidates had criminal cases against them. Out of these 1158 candidates, there were serious criminal cases pending against 608 candidates[xi]. Ironical as it is, a large number of people with criminal background not only contest elections, but also subsequently manage to become the members of the legislature. This is highlighted by the fact that as many as 162 Members of Parliament of the 15th Lok Sabha have pending criminal cases. These 162 MPs, in total, have 522 cases pending against them. 76 out of the 543 MPs have serious criminal cases pending against them. A matter of grave concern lies in the fact that there has been an increasing trend in the number of MPs with criminal background, in comparison with the statistical figure for 2004 where there were 128 MPs with pending criminal cases in comparison with the 2009 figure of 162[xii].
The problem which arise out of criminalization is that once a criminal becomes a politician, the police, whose job it is to keep him under check and investigate his crimes, become his protectors. There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of law breakers becoming law makers and moving around under police protection. There are many criminal gangs in India which are based on caste-divisions.
These groups take advantage of social cleavages and position themselves as leaders or saviors of their caste or community, thus making the whole community loyal towards them and even scared of them. That is why many criminals enjoy fierce local support. With such caste support, strength and money accumulated through crime, they have natural advantages in a local election. In our political system, what matters most is to garner more votes than any of the rival parties. Therefore, the more local support you gather makes often the difference between victory and defeat. That is why politicians choose ‘popular’ criminals masquerading as caste or faction leaders as candidates. That is why sometimes ‘mafia dons’ in jail win elections with ease.
As was rightly said by Alan Moore “People shouldn’t be afraid of their government. The government should be afraid of their people” The main problem with today’s population is that they are scared. Politicians come and lure them or even scare them. But now with the judgment given in the Lily Thomas case at least the villagers also would know that choosing a criminal as their representative is illegal and they should not do it. Our democracy provides for universal adult franchise wherein each and every individual above the age of 18 gets a right to vote. But do they really vote for whom they think is best for the job or the one whom the masses follow?
We think that what the masses say is right and we never want to know the reason as to why we are they actually following them. The Indian democracy has many loopholes. One amongst them is that every person who doesn’t even know about the law or the politics is given the right to vote. These type of people are those who can easily be influenced by power or money. This all factors lead to increasing number of criminals in politics.
In a country wherein, 162 out of 545 Lok Sabha MPs and 1258 out of 4,032 sitting MLAs have criminal cases pending against them[xiii], it is a big leap by the Supreme Court towards depurating of Indian politics. Prior to this , as the reports suggested, were many political parties wherein the parties were although stating that we always choose the most honest persons but were giving tickets only on the basis of winnability of candidates. The muscle and money power was what mattered the most to the political parties when choosing their candidates.
But the question which arises after this judgement is whether the government will now elect proper candidates or will they still carry on with the traditional style of election of their candidates. A study of the candidates in Chhattisgarh has revealed that 113 of the 983 candidates have criminal cases pending against them. Of these, 66 candidates have serious cases against them, which includes murder, attempt to murder, kidnapping and crime against women[xiv]. The study has been done by Association of Democratic Reforms. This itself states that despite of the judgment of the Hon’ble Supreme court the parties are still going forward with their own methods. So the main question is will this judgment help our system? And why is that even after the judgment parties are following their original trends?
The judgment of Lily Thomas case is expected to have far reaching effects. Umlesh Yadav is the first politician to be disqualified by the election commission for a period of three years for suppression of her election expenses incurred when she was selected as a MLA to the Bisauli Constituency in Uttar Pradesh state assembly elections 2007. Lalu Prasad Yadav was recently arrested in the Fodder scam and is now banned to contest any elections for the next 6 years. So we see how this judgement has already started to show its effects in the minds of the people and the government.
Comment from Hariharan after the judgment was enough to explain the whole effect and out comings (the expected ones) of this judgments. He said “We are not short of suitable persons to represent us in the parliament and pass good laws. They do not come forward to contest election for they have no money, no courage to face the mischief of hired workers. Many people join the party only to get position. When they do not get ticket to contest, they indulge in antiparty activities.It is high time we stop voting the criminals and unprincipled persons who hop parties”[xv]
The very essence of democracy that politicians of yesteryears, like Gandhi, Nehru and Patel stood for to serve the country’s people and provide them clean, healthy and corrupt-free governance, was somewhere lost in the recent times. Under these circumstances, in the current state, this landmark ruling is more like a judicial revolution rather than being mere judgment.
“Democracy is a faith in the spiritual possibilities of not a privileged few but of every human being.” – Sarvapalli Radhakrishnan .The Indian election system has somewhat failed to function as an effective tool for democratic will of the people. It has failed to provide general welfare to the masses. The election criteria wherein only age limit and domicile certificate is needed to stand and contest elections has over the decades allowed many persons with a political background to enter into the politics. So there needs to be a change in attitude by the government and election commission towards the rules for selection of candidates. Over the last six decades Indian politics has seen various faces of criminalization and it has come across innumerable examples of candidates contesting from prison and even managing to gain electoral success.
On one hand where a leader or a political party member needs to be free from unnecessary abuses, India had been under such leaders but on another hand it’s not at all possible for a country with a population of 121013422 people[xvi] and a country following representative form of government to have a crime free politics. If the act of decriminalizing the politics is passed then all the 545 members sitting in Lok Sabha would have to be removed and subsequently new elections would happen which would be time consuming and because of few members India may lose some very deserving and honest leaders who were in power.
It is needless blaming the political parties. As Plato, the Greek philosopher said “Tyranny naturally arises out of democracy”. Decriminalizing politics will have its own pros and cons. One hand people will argue it will lead towards a clean politics and other would oppose it by saying the whole stable framework of politics would collapse if accused MLAs and MPs are removed from their position. It is a bitter pill to swallow by a common man but decriminalization is necessary pill for every Indian.
Formatted on 1st March 2019.
[i]Madhav Godbole, India’s Parliamentary Democracy on Trial, 2011
[iii]Representation of peoples act 1951 Page 64. Law ministry of India. Available at :http://lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf (accessed on 16/02/2014)
[iv]K. Prabhakaran v. P. Jayarajan AIR 2002 SC 3393
[v](3) A person convicted of any offence and sentenced to imprisonment for not less than two years[ other than any offence referred to in sub- section (1) or sub- section (2)] shall be disqualified form the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
[vi]Supra note 4
[vii]Election Commission of India v. Saka Venkata Rao AIR 1953 SC 201
[viii]Lily Thomas v. Union of India, MANU/SC/0687/2013
[ix] Supra note 4
[x]Chapter 4 of the National Commission on the Review of the Working of the Constitution
[xi]Page 27, LOK SABHA WATCH 2009-A Compendium of State Election Watch Reports by National Election Watch and Association for Democratic Reforms
[xii]Page 38, LOK SABHA WATCH 2009-A Compendium of State Election Watch Reports by National Election Watch and Association for Democratic Reforms
[xiii]The survey dated 10th July 2013 was conducted by The Association of Democratic Reforms (ADR) and National Election Watch (NEW).
[xiv]Akshat Kaushal. Despite SC order, candidates with criminal background get tickets. http://www.business-standard.com/article/politics/despite-sc-order-candidates-with-criminal-background-get-tickets-113110800759_1.html (accessed on 16/02/2014)
[xv] Sagnik Dutta. The judgment will create awareness’.http://www.frontline.in/the-nation/the-judgment-will-create-awareness/article4944713.ece(accessed on 16/02/2014)
[xvi]Government of India, Ministry of home affairs. Available at : http://censusindia.gov.in/2011-prov-results/indiaatglance.html