Relevance: GS-2, Governance, Elections and its procedure

Key phrases: Representation of the People Act of 1951, Muscle Power, Red Tapism, Vote Bank Politics, intra-party democracy, Justice Delivery, Law Commission 244th Report, 2nd ARC

Why in News?

• Supreme Court has asked the Centre whether it was “willing” to favor a lifetime ban on contesting elections for people convicted of offences.
• Government has rejected the idea of a lifetime ban on convicted persons contesting elections or becoming an office-bearer of a political party citing reason that MPs and MLAs were not bound by specific “service conditions”.
• The government had maintained that disqualification under the Representation of the People Act of 1951 for the period of prison sentence and six years thereafter was enough for legislators.
• Supreme Court also remarked that the Allahabad High Court misinterpreted the Top Court's order by not creating Magisterial Courts for trying cases against MPs/MLAs and by designating only Sessions Courts for such purposes.

Causes of Criminalization of Politics

• Success rate of Politician: Political parties give tickets to candidates on the basis of their ability to win. The chances of winning for a candidate with declared criminal cases in the Lok Sabha 2019 was 15.5 percent whereas for a candidate with a clean background, it was just 4.7 percent.
• Use of Money and Muscle Power: success in elections is largely dependent on the amount of funding it receives. Candidates with criminal records often have large hordes of cash that ensures their victory in elections. .
  • As per ADR website, in 2019 out of 539 candidates analysed , 43% have declared criminal cases against them . Out of the 542 MPs analyzed during Lok Sabha elections in 2014, 185 (34 percent) winners had declared criminal cases against themselves while during Lok Sabha elections in 2009, 30 percent had declared criminal cases against themselves. Hence there is a clear 44% increase in candidates with declared criminal cases against them.
• Corruption and Red Tapism: corruption and red-tapism in the bureaucracy and government have led to the development of a nexus between bureaucrats, politicians, police officers, criminals, and the corporates. All these ultimately aid the people with a criminal background to enter politics.
• Weak Rule of Law and Increasing Vote Bank Politics: weak rule of law has reduced the belief of people on the police and bureaucracy.
  • The social divisions on the basis of caste and religion etc., and the inability of authorities to act promptly in case of social tensions have reduced the faith of people on democratic institutions.
  • This creates a breeding ground for the strongmen to gain popularity and hold on the people of their own community.
• Lack of intra-party democracy: In India, there is a lack of intra-party democracy, and the top leadership takes the decision on the candidates contesting elections. Thus politicians with criminal records are able to escape the scrutiny of the ground level workers and organization of the party.
• Poor Conviction Rate: In India, the level of conviction of MPs and MLAs with criminal records have been very low. Low level of convictions and the delays in the trials does not deter the political party to give tickets to candidates with a criminal background.
• Toothless Election Commission: Election commission asks for the details of the property, cases pending in the courts, and educational qualifications from the candidates filing the nomination papers and also election expenditure of candidates.
  • However, the candidates often give wrong details and the Election commission is unable to take any action against them.
    Impacts of criminalization of politics
• Negative Impacts on the Quality of Democracy: Presence of legislatures with criminal background negatively impacts the lawmaking power of Parliament and state legislatures. It is like a dent on democracy and negatively impacts the quality of democracy.
• Obstructing the Process of Justice Delivery: The criminalization of politics obstructs the process of justice and causes delays in trials. Criminals after getting into the position of power misuse it for or getting away with their crimes and offences.
• Increases Corruption: The criminalization of politics increases corruption in public life, creates a nexus of criminal, politician, and bureaucracy. All these have negative impacts on the state institutions such as the legislature, executive and the judiciary.
• Violence in Society: It leads to a culture of violence in society. For example, the level of political violence in West Bengal has created bad precedence for the youth of the state.
• Illegal Money Flow into the Electoral Process: The criminalization of politics promotes the flow of illegal money into the electoral process and negatively impacts the security of the people and the nation.

Measures to Curb Criminalization of Politics:

• Section 125A of the Representation of Peoples Act: The Act should be amended, in order to provide more stringent punishment for concealing or providing wrong information in Form 26 under the Conduct of Election Rules, 1961 to a minimum term of two years’ imprisonment.
• Law Commission 244th Report recommended:
• Completion of trials against a sitting MP and MLA within one year.
  • With the retroactive application, all persons with pending criminal charges that are punishable by more than 5 years to be disqualified subject to certain safeguards.
  • Punishment of 2 years for filing a false affidavit under section 125A. A conviction under this should be made a ground for disqualification.
• 2nd Administrative Reforms Commission: recommended to amend the Section 8 of Representation of People Act, 1951 for disqualifying persons who are facing charges related to heinous crimes and corruption, provided that charges are framed 6 months before the election.
  • Bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.
• Supreme Court Landmark Judgements:
  • Union of India vs. Association for Democratic Reforms and Anr case, 2002: Supreme Court ruled that every candidate contesting election has to declare his criminal and financial records along with educational qualification.
  • Ramesh Dalal vs. Union of India case, 2005: Supreme Court ruled that a sitting Member of Parliament or any Member of state legislative assembly will be disqualified from contesting the election if convicted and sentenced for imprisonment for two years or more by a court of law.
  • Lily Thomas vs. Union of India case, 2013: Supreme court declared the Section 8(4) of the Representation of People Act, 1951 as unconstitutional that allowed the convicted MLAs and MPs to continue in office till the appeal against those convictions is disposed of.
    • Accordingly, MLAs and MPs would be disqualified immediately if convicted and sentenced for two or more years. However, in 2017, the union government informed the supreme court that if the appellate court stays the conviction, the MLAs and MPs would be allowed to continue.

Way forward:

• The criminalization of politics and corruption hits the roots of democracy. There should be wide publicity of the candidates with criminal records, who are contesting in an election and the political parties that give them support.
• There is a need to bring greater transparency in the campaign financing of political parties. The political parties must be brought under the Right to Information Act to improve their transparency and accountability.
• The Parliament should enact a law dealing with increased criminalization of politics. Further, of courts dealing with sitting legislators would be crucial for the decriminalization of politics.
• The suggestions of Law Commission, Supreme Court and Election Commission needs to be implemented for cleansing the Parliament and state legislatures from people with a criminal background.

Sources: The Hindu , Deccan Herald , Times of India

Mains Question:

Q. Present Politics is suffering from criminalization, in this respect discuss the increasing trend of criminalization of politics with its causes and its impacts. Also state steps taken to decriminalize it?