Owning up to criminalisation in politics
What is the issue?
A February 2020 Supreme Court judgment where the political party and its leadership would for the first time have to publicly own up to criminalisation of politics which they had been denying it all these years may have far-reaching consequences for Indian democracy.
When is the implementation?
It will first be implemented in the coming Bihar elections in October 2020.
What did the court say?
The Court has asked the political parties to state the reasons for the selection of such candidates, as also as to why other individuals without criminal antecedents could not be selected as candidates. If a political party fails to comply, it would be in contempt of this Court’s orders/directions.
- In 2004, 24% of the Members of Parliament had criminal cases pending against them
- In 2009, that went up to 30%
- In 2014 to 34%
- In 2019 as many as 43% of MPs had criminal cases pending against them.
- India is the only democratic country with a free press where we find a problem with this dimension. A steady deterioration in politics in India has been observed over the decades, with the decline accelerating in the past 16 years.
- Politics is dominating the bureaucracy, and reins in business, civil society, and the media.
- Surveys show that people around the country are unhappy with the quality of governance. We require governance that is free of the criminal virus.
- Capability is not sufficient. The intent to do public service is necessary.
- People have limited choices at their disposal. They vote as best as they can. But no matter how many parties are changed, governance does not really improve.
- Using money power to buy MLAs and MPs makes a mockery of election outcomes.
- Electoral bonds also bring secrecy back into political funding.
Earlier orders regarding Criminalisation of Politics by the court
Earlier order state:
- Each candidate shall submit a sworn affidavit giving financial details and criminal cases
- Each candidate shall inform the political party in writing of criminal cases against him or her; and
- The party shall put up on its website and on social media as well as publish in newspapers the names and details of such candidates.
Landmark rulings by SC so far:
- 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.
- The Supreme Court concluded that the rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by cleansing the political parties.
- 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 tickets to offenders in both Parliamentary and Assembly polls.
- 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 publicize pending criminal cases faced by their candidates in 2018.
- In 2013, the Supreme Court in the case of 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.
- 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.
- 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.
- 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.
- The Supreme Court directed the Election Commission to bring the issue of election-related ‘freebies’ under the ambit of the Code of Conduct.
Why Indian politics infected with the Criminal Virus?
Indian constitution does not specify as to what disqualifies a person from contesting elections for the Parliament, Legislative assembly or any other legislature. The Representation of the Peoples Act mentions the criteria for disqualifying a person for contesting an election of the legislature.
- The inefficiency of Representation of the People Act, 1951 which deals with disqualification of candidates:
- Section 8 of the act, i.e. disqualification on conviction for certain offenses, according to which individuals punished with a jail term of more than two years cannot stand in an election for six years after the jail term has ended.
- The law does not bar individuals who have criminal cases pending against them from contesting elections therefore the disqualification of candidates with criminal cases depends on their conviction in these cases.
- With cases dragging in courts for years, a disqualification based on conviction becomes ineffective due to a low conviction rate.
- Therefore, in order to curb criminalization of politics, Parliament needs to bring an amendment to the Act.
- Unsaid understanding among the political parties which deters Parliament to make strong law curbing criminalisation of politics.
- Candidates with serious records but the ability to finance their own elections and bring substantive resources to their respective parties are an asset for the party. Hence they are not questioned they form the power block.
- Irrational voters: Many voters tend to view candidates through a narrow prism. A communal colour can be identified. Believing such candidates may work in the interests of their caste, religion, etc.. they vote ignoring the consequences.
- Lack of Choices: Many times voters are left with no better options. All competing candidates could have criminal records.
- The Court order is to be welcomed. But several laws and court judgments have not helped much. We are still unable to ban people with serious criminal charges from contesting elections. Implementation has to be stressed upon.
- Clarity required: It is also not clear what penalty would be imposed if the recent orders are not followed. Would the law enforcement agencies act vigorously to ensure that the guilty are prosecuted? Would any top political leader responsible for not complying be found guilty? Would an election be set aside? Without such action, will there be change? - These questions have to be answered and proper protocols to follow are required.
- Monitoring the affidavits of candidates, working with the Election Commission to ensure that information is promptly available on their websites.
- Widely circulating this information to voters using all the social media tools available.
- Monitoring compliance with the Supreme Court judgment to see if details of tainted candidates are promptly put up on their websites, and on their social media handles, along with proper reasons for giving the tickets.
- Voters also need to be vigilant about the misuse of money, gifts, and other inducements during elections. Till we realize that people who bribe us for votes cannot be trusted, the change will be very slow. Fortunately, an evergrowing number of voters and organizations are joining in this work of cleansing politics.
- Deal with fake news, trolling, and fanciful claims. This may drown out the little that citizens can do.