Criminalization of Politics and Electoral Reforms

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The involvement of criminals in politics has been going on for a very long period of time and is not a new phenomenon in Indian politics. Criminals influence politics by funding political parties and facilitating muscle power which eventually helps political parties in winning the elections. Not a long ago, the intensity of the issue has escalated to a point that the criminals themselves have started to contest in the elections. Parties tend to give them tickets as they would garner votes through any means, even if it means to utilize muscle power to win the elections. This questions the very fairness of the election process in itself and jeopardizes the democracy of the country.

Reasons Behind Criminalization of Politics

The criminalization of politics could be of many reasons but primarily circles around the lack of political will and the incompetence of the Parliament to tackle this issue with proper legal provisions. The Election commission and Supreme court have tried to address this issue many times but without a clear legal framework it is difficult to address this issue. Another factor is the lack of implementation of these laws by law enforcement agencies during elections as the code of conduct for the election process goes fluid in actual practicality. The political parties tend to field candidates with criminal backgrounds because they have the ability to win the election with the help of their money and muscle power which makes people compelled to vote for them. This fulfills the party’s interests. The voters are often left with no option but to choose the best criminal among the worst ones. Additionally, the entry of criminals into politics was also due to, the breakdown of the Congress party’s dominance, deteriorating law and order situation in general throughout the country. Another important factor which has to be mentioned is the deterioration in the election’s financial jurisdiction. With the power to access liquid financial resources and the capability to transfer money undetected, many criminal elements have become invaluable assets to political parties, incentivizing the parties to field these candidates.

Consequences of Criminalization of Politics

This phenomenon has far reaching consequences as it would make elections unfair while free and fair elections remain the bedrock of democracy. It has even affected governance as people who break laws are now the law makers. This may wither people's faith and confidence in elections. The corruption has increased as money circulation increases during elections which in turn questions the integrity of public servants. This even affects social harmony as it introduces a culture of violence in society and sets a bad example for the future generations to follow.

Various Committees Recommendations as part of Electoral ReformsThe Committee chaired by former Home Secretary N.N. Vohra, was related to criminalization of politics. It looked into exposing the increase in networks of money, muscle and political power in the electoral process with the involvement of the political elite, bureaucracy, criminals and the mafia. In its report in the year 1993, the committee recommended setting up of an effective nodal agency to work confidentially under the Ministry of Home Affairs to collect and compile all the information received from the various intelligence and law enforcement agencies of the Government in this regard. The then Chief Election Commissioner, T. N. Seshan also took proactive measures to curb the rising malpractices in the electoral process. He imposed strict action to curb the incidents of bribes or intimidation of voters by politicians. The Constitution Bill 1994 and the Representation of the People Second Amendment Bill 1996, introduced several electoral reforms measures like increasing the amount of security deposit and a ban on selling liquor during the polling day. The Indrajit Gupta Committee in 1998 was an important committee regarding electoral reforms , it was mainly concerned with the issue of state funding of elections to curb use of money and muscle power. The very next year in 1999, Justice Jeevan Reddy as the Chairman of the Law Commission report suggested measures regarding defection. To curb criminalization of politics, the Commission has suggested that a person should be disqualified from contesting elections to the Lok Sabha or an Assembly in case the court has ordered leveling of charges in respect of those offences included in the Representation of the People Act, 1951 but this recommendation was not adopted. In spite of all these recommendations regarding eradicating ‘criminals’ influence in politics, there was no major improvement in the situation of criminals entering into election affairs, in fact influence of criminals increased over the years.

Measures taken by ECI

As the situation worsened, the ECI wanted to crackdown on the criminalization of politics. One of important measures to be implemented was to bring about transparency around the criminal antecedents of candidates, credit to the new affidavit regime introduced in 2003. It is these data that have brought to light the cold, hard facts about the criminal antecedents of MPs and the various state assemblies. For instance, of the 543 members of the 16th Lok Sabha elected in 2014, 186 faced pending criminal cases. The numbers at the state level are equally disconcerting as 31 percent of elected MLAs face pending cases. These criminal cases are cases, not convictions and the candidates must only disclose those cases where a judge has taken cognizance of the case and not those cases where just charges have been filed. The ECI publishes these individual affidavits on its website before the election, the ECI makes sure that the background of candidates reach voters by SMS and by other means. Despite this information and awareness campaigns, there is evidence to indicate that the problem is rather worsening getting worse, than getting better. 24 percent of MPs in the 2004 election were under criminal indictment, that share rose to 30 per cent in 2009, 34 per cent in 2014 and 43 percent in 2019. This measure has brought into light the harsh realities of the problem existing in our system.

Supreme Court Judgements

The Supreme court has played an important role in addressing this menace of criminalization of politics, in July 2013, the Supreme Court issued an important ruling which invalidated a clause under Section 84 of the RPA 1951, according to which sitting MPs and MLAs could have served in office even if they were convicted of a crime until their appeals were exhausted. The Court stated that this special exception given to elected representatives is beyond Parliament’s constitutional powers, so not to penalize the current MPS, this ruling would apply prospectively. Lalu Prasad Yadav, the powerful former chief minister of the state of Bihar, who was convicted in a 2013 case related to the fodder scam was the first victim of this ruling. This ruling might not be effective as the conviction rate in India is very little. This is a cause of worry. One study reveals that cases filed against MPs in the 15th Lok Sabha (2009–14) had been pending for seven years, on average this is because of the weakness in the judicial system which takes a long time to serve justice. The Supreme court also in other cases has directed the candidates to disclose their assets and criminal records. The Supreme Court also established special courts for speedy trials of those cases involving sitting MLAS and MPS, so if anyone is convicted in crime, they can be disqualified as early as possible. The Supreme court was responsible for incorporation of the None Of The Above (NOTA) option which gave the voter to tell the political parties that none of the candidates are not deserving to be elected. Recently the Supreme court has directed the political parties to put out the complete details of the candidate’s criminal background and reason for fielding them in the election but political parties seems to not follow courts direction as recently it held the BJP, the Janata dal ,the Rastriya Janata dal and the congress ,among others, guilty of contempt for not complying with its directions regarding complete disclosure of criminal antecedents of candidates put up by them during the Bihar assembly elections in 2020, and imposed a fine of 1 lakh on each. However, this is significant as the parties have to justify their choice of fielding that candidate and logic behind such a decision.

Measures to be Adopted

In spite of all these judgements and various measures taken by ECI, the criminalization of politics still exists. The reason for this is that ECI has not been given complete authority to regulate criminal activities as the model code of conduct is not legally supported. The ECI does not have the power to regulate activities of political parties so ECI has to be strengthened by legislative reforms. The Commission needs new powers to regulate political financing and punish non-compliers more strictly so as to reduce the supply of money. The ECI could place limits on who can stand for election. As part of a package of electoral reforms the ECI drew up prior to the transition from CEC Quraishi to his successor V.S. Sampath, the Commission particularly argued for barring those candidates facing serious criminal cases. To guard against politically motivated charges, it has proposed that this would apply only to candidates facing charges which have been framed by a judge, filed minimum one year before election, and carry a potential sentence of five years or more. This would need legislative authorization but this reform should be extensively debated by experts. Another reform is post election action against candidates who win elections and face serious pending cases. Many civil society groups have recommended that cases against sitting MLAs and MPs should be fast tracked as the judicial process is very slow. The aspect of state spending for the elections has to be debated as it may ensure reduction in money and muscle power during elections so that criminals do not influence elections.

Another important aspect is change in behavior among voters as the voters should not come under influence of money or gifts from the candidates. When voters stop voting on the basis of the money, the political parties will try to field candidates who do not have any criminal history. Along with this public institutions should be strengthened so that people start believing in them.

Conclusion

The Parliament should make a law giving more power to the ECI, candidates facing serious criminal charges should not be allowed to contest in the elections if a case is filed one year prior to the election and potentially face five year sentence in a case. If the Parliament does not legislate such a law then the Supreme court should come out with such judgements. There are many arguments for and against such moves but it is the right step towards free and fair elections which is the need of the hour to ensure the integrity of the country’s governing body.

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By Shubodh HM

Shubodh HM is a student of Political Science hons.