Criminalization of Politics: A Critical
Analysis
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Subharti Institute of Law,
Subharti University
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for the degree of
Masters of Law
Academic session 2021-2023
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Criminalisation of Politics- behavior of the law in politics as per indian framework
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Criminalization of Politics: A Critical
Analysis
File submitted to
Subharti Institute of Law,
Subharti University
By
In partial fulfillment of the requirements
for the degree of
Masters of Law Academic session 2021-
Acknowledgment In the completion of this project, I owe a debt of gratitude to my guide and Professor of the subject, who inspired me to undertake the project of the study of the most important problem of Indian politics today. Next, I would like to thank my family who provided me assistance and constant support while I worked towards finishing it.
The criminalization of politics means the participation of criminals in politics which includes that criminals can contest in the elections and get elected as members of the Parliament and the State legislature. It takes place primarily due to the nexus between politicians and criminals. Criminalization of politics a systematic fact of subversion of the usual course of politics by illicit means intended to attain private gains. It gives rise to a kind of situation where there is a great dearth of erosion of value, organized valuations of norms, rules, and principles, death of security of life, liberty, and property lack of transparency and accountability, the dominance of muscle power and black money, plundering of resources rampant corruption, denial of justice and Rule of Law, contraction of popular sovereignty, lending to the underworld, an opportunity to establish substantial control over the political process. There are many forms of criminalization of politics, the one that is most alarming among them is a significant number of elected representatives with pending criminal charges against them. The criminalization of politics involves intimidation of voters, booth capturing, the proliferation of non-serious candidates, tampered electoral rolls, and other polling irregularities. According to the law – even individual who have criminal cases pending against them can take part in elections as Indian law doesn’t bar those who are facing trials for serious criminal offense also and what’s more shocking and rather disgraceful is that these people even after committing serious criminal offenses make their approach to the Parliament and Assemblies, which is the highest governing body of the country. Unfortunately, who we elect to make the law are themselves, criminals, before the law. The criminalization of politics in India includes political control of the police, state money, corruption, weak laws, lack of ethics, values, vote bank politics, and loopholes in the function of the election commission. Having a weak rule of law in India is the main reason that has led to an increase in the alternative forms of dispute resolutions. It is well known that all parties take the help of criminal elements to dominate the election scene in India. But this process is influencing the mind and the will of the people both to gain the majority to rule the country according to their will. The system of democracy is now changing into the dictatorship of some. Because the democracy of India is now in the hands of the criminals who are not capable of any way to hold the post of the legislature.
History: The criminalization of politics is, in fact, the product of the political elite which resorts directly or indirectly, to criminal and illegal ways to hold on to its power and privileges. The criminalization of politics has been there for a long time, for the last 50 or 60 years and it is going to stay. A bizarre aspect of India’s politics is the entry of anti-social and criminal elements into it in a big way. Its convoluted political culture has provided the space as well as legitimacy and responsibility. The nexus between politics and crime has a basis in quid pro quo. Politics provides protection to the mafia gangs and other anti-social elements; the latter helps out in booth capture, intimidation of voters, and elimination of those who do not yield to them. The tie-up between the politician and the criminal is not a recent phenomenon, nor one confined to a particular is not recent phenomenon nor one confined to a particular society or culture. In respect of political corruption in its crude form, that is, making money out of political office, we seem to be living in the times of the East India Company. The foremost among the empire-builders of the company-Robert Clive and Warren Hastings, indulged in the crudest form of bribery and corruption to enrich themselves personally. It is a paradox of history that the empire-builders of a foreign land who started their activity in India with naked corruption ended up handing over a remarkably clean administration to the leaders of independent India. It is a greater paradox that although our nation-builders started with the highest standards of probity and purity, we find ourselves trapped in the cesspool of corruption. As the decade of the fifties advanced, there were more and more talks about ‘corruption’ vitiating India’s nascent democracy, but it was still seen as one of the many ills afflicting the country, and not necessarily the most important. In those formative years, communalism, casteism, and parochialism hogged the limelight, as threats to India’s nationalism and corruption as such attracted less attention. With politics turning into a business enterprise-in fact, the most flourishing industry which knows no recession or slump, a new breed of political entrepreneur had emerged ready to storm the citadels of power. If the older political class lost its agenda and commitment to any worthwhile objective of public good in its bid to stay in the game, the new class of political entrepreneurs has no such commitment to start with. They join politics to make good themselves because it provides opportunities for the type of qualities and skills they possess to have full play.
Reasons for the Criminalization: (1) Vote Bank: The political parties and independent candidates have astronomical expenditure for vote buying and other illegitimate purposes through these criminals or so called goondas. A politician’s link with their constituency provides a congenial climate to political crime. Those who do not know why they ought to vote comprise the majority of voters of this country. Therefore the majority of the voters are manoeuvrable, purchasable. Most of them are individually timid and collectively cowardly. To gain their support is easier for the unscrupulous than the conscientious. We have long witnessed criminals being wooed by political parties and given cabinet posts because their muscle and money power fetches crucial votes. Elections are won and lost on swings of just 1% of the vote, so parties cynically woo every possible vote bank, including those headed by accused robbers and murderers. Legal delays ensure that the accused will die of old age before being convicted, so parties virtuously insist that these chaps must be regarded as innocent till proven guilty. (2) Corruption: In every election all parties without exception put up candidates with a criminal background. Even though some of us whine about the decision taken by the parties, the general trend is that these candidates are elected to office. By acting in such a manner we fail to realize that the greatest power that democracy arms the people is to vote incompetent people out of power. Independence has taken place through a two-stage process. The first stage was the corrupting of the institutions and the second stage was the institutionalization of corruption. As we look at the corruption scene today, we find that we have reached this stage because the corrupting of the institutions in turn has finally led to the institutionalization of corruption. The failure to deal with corruption has bred contempt for the law. When there is contempt for the law and this is combined with the criminalization of politics, corruption flourishes. India is ranked 86 out of 180 in the Corruption Perception Index 2020 by the German non-government organization based in Berlin. (3) Loopholes In The Functioning Of Election Commission: 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. Too much should not be expected, however, from these disclosures. They would only
inform people of the candidate’s history and qualifications, but not prohibit them from casting their votes, regardless, in favour of a criminal. For the past several general elections there has existed a gulf between the Election Commission and the voter. Common people hardly come to know the rules made by the commission. Bridging this gap is essential not only for rooting out undesirable elements from politics but also for the survival of our democratic polity. This is an incremental process, the rate of success of which is directly proportional to the increase in literacy rate in India. The electorate have made certain wrong choices in the past, but in the future national interest should guide them in making intelligent choices. (4) Denial of Justice And Rule of Law: Criminalization is a fact of Indian electoral politics today. The voters, political parties and the law and order machinery of the state are all equally responsible for this. There is very little faith in India in the efficacy of the democratic process in actually delivering good governance. This extends to accepting criminalization of politics as a fact of life. Toothless laws against convicted criminals standing for elections further encourage this process. Under current law, only people who have been convicted on at least two counts be debarred from becoming candidates. This leaves the field open for charge sheeted criminals, many of whom are habitual offenders or history-sheeters. It is mystifying indeed why a person should be convicted on two counts to be disqualified from fighting elections. The real problem lies in the definitions. Thus, unless a person has been convicted, he is not a criminal. Mere charge-sheets and pending cases do not suffice as bars to being nominated to fight an election. So the law has to be changed accordingly. Other reasons for the criminalization of politics include: ● A partisan interfering in the investigation of crime and poor prosecution of cases. ● Massive delays of cases of criminal candidates over the years and high cost that is involved in the judicial proceedings. ● Unwarranted granting of parole and abundance withdrawal of the court cases. These reasons have also been equally responsible for spurring criminalization in politics.
step. No law should provide a protective shield to the corrupt public official and the court has rightly held that no prior sanction of competent authority would be required to prosecute them. With this order, 93 MPs and 10 ministers in Manmohan Singh's ministry are under the scanner on various criminal charges. This is appalling. It is ironic that the executive and legislatures who make and implement policies and guidelines for the development are themselves acting as stumbling blocks in the development of the nation. The role of the Supreme Court becomes very important here. The Apex Court as custodian of constitution should take all necessary steps to strengthen democracy in the country. The legislature and executive have been complaining about the Supreme Court’s intervention on their domain, but it becomes imperative in such kind of unwanted situation. The Supreme Court of India upheld a PIL which made it mandatory for everyone seeking public office to disclose their criminal, financial and educational history. It was a way to ensure that the voters knew the important details about their “honourable” leaders, and steamed them indeed.
2020 Judgement:
The Supreme Court bench of justices R.F. Nariman and S. Ravindra Bhat on 13th February 2020 ordered the political parties to publish criminal antecedents of their candidates for the Legislative Assembly and Lok Sabha elections.The order said that a detailed reason within 48 hours of the selection of the candidates should be published by the parties as to what made them choose the candidates having criminal records over other candidates. Information to be disclosed ● The crime that the candidate is accused of; ● How many cases and what kind of cases are charged against the candidate?; ● Details of the case, case number and name of Court; ● At which stage the criminal case has reached – FIR or investigation or charge-sheet or trial; ● Why can’t the other individuals without any criminal antecedents can not be selected as candidates? “Winnability” cannot be the only reason for the selection of the candidate. The information must be uploaded on ● social media platforms like Facebook and Twitter. ● one national newspaper. ● website of the party.
● one local vernacular newspaper. As of today, the political parties do not offer any explanation as to why the people with pending criminal cases are selected as candidates for contesting elections when they have a choice. Contempt of Court ● A report of compliance shall be submitted by the concerned political party in compliance with the directions to the election commission within 72hrs of the said candidate. ● If there is a failure on the part of the political party to submit this compliance report, then the Election Commission shall report such non-compliance by the concerned political party to the Supreme Court as being contempt of the Court order. Enforcement of decrees and orders and Contempt of Supreme Court is dealt under Article 129 and Article 142 of The Constitution of India, 1949. The case of Court contempt will be filed against the party president.
Negative Voting
Earlier there was no concept of negative voting. The voters going to cast their votes had to choose one candidate from the ballot paper or on an electronic voting machine. The Election Commission of India and the Law Commission of India have the institution of the neutral or negative voting system. This system gives a choice to the voter to choose none of the candidates on the ballot by selecting “None Of The Above” (NOTA). There could be a democratic safeguard with the institution of such a system. If there are sufficient and proportional negative votes it can render the current election to be null and void and there are chances that re-election would consequently be taken up. The negative voting was also essential as if there would be plenty of negative votes against a single candidate, it would let the party know that their candidates are not strong enough to contest the election, the political party should bring up a strong candidate that is favoured by the voters.
Measures to Curb the Criminalisation:
- The Political parties should themselves refuse tickets to the tainted candidates.
- There should be an amendment in the RP Act to debar the persons from contesting elections against whom crimes of heinous nature are pending.
- Fast-track courts should deal with the cases of politicians with criminal records. Fast-track courts are necessary because the politicians have the power to keep on delaying the judicial proceedings and serve for decades before any prosecution takes place. If there is a speedy trial of politicians who have criminal records, they might not be able to contest elections.
- Intra-party democracy and accountability should be promoted by the Constitution.
- Persons who have been punished with a jail term of more than 7 years should not be given a right to contest elections before the High Court grants permission.
- Awareness should be created about NOTA (none of the above) and such other options to prevent the criminals from winning elections. Some other measures: ● Greater transparency should be brought in campaign financing that will make it less desirable for the political parties to comprise the candidates pertaining to criminal background. ● The penalty should be inflicted on the political parties who give tickets to the criminals to contest in elections. ● The appointment of Election Commissioners should be in a fair and transparent manner. ● The Election Commission of India (ECI) should be given the power of auditing the financial accounts of the political parties or the finance of the political parties must be brought to the Right to Information (RTI) law. ● Broader governance should be improved for voters in order to make them aware if there is any criminal background of the candidate. ● To modify the existing laws legal changes should be made and to prevent the criminals from contesting in elections. The criminals should be blacklisted and disciplinary actions must be taken against them. ● Adequate measures must be taken by the Election Commission in order to break the link between the criminals and politicians.
Conclusion: Democracy implies rule of law and holding of free elections to ascertain the will of the people. But in quite recent times this peaceful process of social change has been much vitiated. Criminalization of politics has become a headache for the Indian democracy. It’s shameful to admit that in the world’s largest democracy the cult of the gun prevails; Goondas and Criminals are hired to kill political rivals etc. In this way the entire democratic process is negated. What’s more surprising and rather shameful is that these people even after committing serious criminal offences make their way to the Parliament and Assemblies, which is the highest governing body in the country. TheVohra Report, submitted by the formerIndian UnionHome Secretary, N.N. Vohra, in October 1993, studied the problem of the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India. The report contained several observations made by official agencies on the criminal network which was virtually running a parallel government. It also discussed criminal gangs who enjoyed the patronage of politicians of all political parties and the protection of government functionaries. Many criminals are just allowed to contest in the elections just because they are not convicted and under the trial of court. This practice can be avoided if special arrangements are made for speedy trial of the politicians with criminal records. Because it needs to be understood that such people should not be allowed to sit in the highly esteemed house of parliament, which decides the fate of the country. The Vohra committee appointed by the Central Government under chairmanship of Mr. M. N. Vohra to look into this problem said in its report that the mafia network was virtually running a parallel government, pushing the State apparatus into irrelevance. A petty dada finds it easy to become a feared representative of the people. Mafia gangs enjoyed the patronage of local level politicians and that some gang members even got elected to the Assemblies and Parliament. Criminalisation of politics in India has attained a stage, where it needs serious attention from the citizens, government and political parties as there was a steady decline in values of all sections of our society. Criminalisation of politics has led to immense pressure on the functioning of political institutions. The worst part of the picture is that “criminal record” becomes an essential qualification for entry into politics. In India Politics is not a social service anymore, instead it emerged as a lucrative profession or business. Today it is used to believe that crime is the shortest access to the legislature and parliament of India. Further the success rate of criminals into the electoral process is alluring the young blood of the country as a source of negative inspiration for them. It is now believed that the safest haven for criminals is politics and political parties have gone overboard in associating criminals with them more because of their muscle and money power, which is supposed to ensure victory in polls. Criminalisation of the political system is threatening the very roots of democracy in India.
Table of Contents:
Acknowledgment Introduction ● What is the Criminalization of Politics? History ● The Vohra Committee on “Criminalisation of Politics” Reasons for the Criminalization Laws for candidates involved in the criminalization of Politics ● Legal Threads ● Supreme Court’s Judgements ● Negative Voting Statistical Analysis Measures to Curb the Criminalization Conclusion Bibliography
- Criminalization of Politics: A Critical Analysis
- Introduction:
- What is the Criminalization of Politics?
- History:
- The Vohra Committee on “Criminalization of Politics”:
- Reasons for the Criminalization:
- The Laws for candidates involved in the Criminalisation of Politics: - Legal Threads: - Supreme Court’s Judgements:
- Negative Voting
- Statistical Analysis:
- Measures to Curb the Criminalisation:
- Conclusion:
- Bibliography: