Civil Society; Concept, Emergence and Impact

            Civil society refers to a wide array of individuals and organisations. As per the World Bank, “the term civil society to refer to the wide array of non-governmental and not-for-profit organizations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations. Civil Society Organizations (CSOs) therefore refer to a wide of array of organizations: community groups, non-governmental organizations (NGOs), labor unions, indigenous groups, charitable organizations, faith-based organizations, professional associations, and foundations”.

           

            Civil society is different from both the state and the community. It can in fact be said to occupy the space which exists between the community and the state. It is represented by those associations, the NGO’s, the individuals, academicians and intellectuals who strive for betterment of the lives of people in the areas of their operation. Since the civil society institutions exist between the state and the community they are generally seen as distant from the state and are therefore immune from the loss of credibility of the state and its related institutions. The civil society is considered complimentary and sometimes as a substitute for the state institutions. The basis of the formation of civil society is secular. Caste and kinship linkages, religion or tribal mobilization etc. are not the basis of the formation of civil society.

            Democracy and Civil Society are inseparably related to each other. A healthy liberal democracy needs the support of a vibrant civil society as a check on the centralized power of the state. The perspective developed particularly in the Soviet Union and Eastern Europe where the civil society emerged in contrast to the totalitarian state. The rights of the individuals, which were violated during the totalitarian regimes, were seen to be protected in the realm of the civil society. Civil society is important for those who question the state’s imposition on them. Through the civil society people make the state respond to their voices. The civil society allows every participant group to maintain its specificity, culture. It is based on the principles of freedom and equality and strives to create an egalitarian and democratic order.

CHARACTERISTIC FEATURES OF CIVIL SOCIETY

            Concept of civil society has been widely debated and deeply analysed. Despite the diversity of its composition it has some characteristic features which are as under:  

·         Civil society is the realm of organised social life that is open, voluntary, self-generating, at least partially self-supporting, autonomous from the state and bound by a legal order or set of shared rules. It is distinct from “society” in general in that it involves citizens acting collectively in a public sphere.

·         It is concerned with public causes rather than with personal or private causes. It excludes parochial society: individual and family life and inward-looking group activity; and it excludes economic society: the profit-making enterprise of individual business firms.

·         Civil society is related to the state in some way. It tries to influence the state but does not seek to control the state; it does not seek to “govern the polity as a whole”.

·         Civil society encompasses pluralism and diversity. It encompasses a vast range of organizations, formal and informal, including economic, cultural, informational and educational, interest groups, developmental, issue-oriented and civic groups.

·         Civil society does not seek to represent the complete set of interests of a person or a community. Rather different groups represent or encompass different aspects of interest.

·         Civil society should be distinguished from the more clearly democracy-enhancing phenomenon of civic community. Civic community is both a broader and narrower concept than civil society: broader in the sense that it encompasses all manner of associations (parochial included); narrower in the sense that it includes only associations structured horizontally around ties that are more or less mutual, cooperative, symmetrical and trusting.

                                   

Community and Civil Society

           

            As mentioned above civil society is different from the community. Community is a group of people knit into relationships on the basis of primordial factors, i.e., religion, kin, family ties, caste, etc. These set rules for the individuals, which constitute the community. The nature of the rules of the community about the rights of the individuals and citizens show the nature of polity and society. The rules of the community are particularistic and those of the state are universalistic. If there are conflicts between the two sets of rules, the democratic edifice of the polity gets eroded but if on the other hand, the rights of the individuals in a society are in consonance with those of the state, the polity represents democratic traits.  The status of the democratic rights of individuals within the society – of women, of disadvantaged groups, of minorities, etc.–depends on the nature of all the three institutions i.e state, civil society and community.

                                   

Civil society in India

            The social reform movements of the colonial period and those during the national movement could very well be said to taken up by the elements which in present terms could be categorized under the term ‘civil society’. The activity remained subdued in the first two decades of the independence because people hoped that the newly born state would be able to bring widespread changes on the economic and social front. However, soon a section realized that the things were not progressing as expected. This resulted in increase in the levels of the activism in the country. The activism increased in the late 1970s. Subject of movements ranged from civil liberty, ecology & environment and discrimination and oppression of women and dalits. The movements brought to fore the new concerns and reflected the consciousness on a number of issues like the control over the resources, the right of indigenous people to preserve their culture, the transformation of the feminine concerns from the exclusive concern of the women to the concern of the larger society, and the assertion by the lower caste.  

            Since the last few decades, the civil society has increased its activities and has played in major role in the development of the country both in support of the state as well as in opposition to it. While supporting the state, the civil society through various NGOs has played an important role in implementing various development and welfare schemes. The civil society has also taken a stand on various issues of governance in which it has opposed the state and acted as a watchdog and a pressure group in framing and implementation of policies.

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The Supreme Court Judgment in case of “Lily Thomas Vs Union of India” and its impact of criminalization of politics

            Recently, the Supreme Court delivered a judgment in the case of “Lily Thomas Vs. Union of India” in which Section 8(4) of The Representation of The People Act was held ultra vires the Constitution of India. The said Act lays down regulations for conduct of elections to the Parliament and the State Legislatures and also provides for disqualification on conviction and/or imprisonment for certain offences mentioned in various subsections of the Section 8 of the Act. However, Section 8(4) provides a relief to the sitting legislators by providing that they could complete their term if they file an appeal within three months of the date of conviction. The relief would continue till the disposal of the appeal. The Supreme Court in its above referred judgment has struck down this Section 8(4) thereby ending this relief to the sitting legislators and taking away the preferential treatment which this section granted to them. The judgment is being hailed as a step which would cleanse the Indian politics from criminalization but although it is a step in the right direction it is not likely to make a sizeable dent in the problem of criminalization of politics as its reach is limited. Apart from those sitting legislators who are convicted, the problem involves those politicians who are facing trail as well as those against whom there are allegations. Apart from this the problem is not only legal but also has social and political dimensions which will be difficult to sort only through legal methods. 

Social aspects

            Since ancient times, Indian society has been torn by the differences of caste and creed. This has resulted in fragmentation of the society. These differences were also reflected in the world of crime. In earlier periods, the functioning of dacoits of Chambal ravine showed similar patterns where gangs were formed on caste basis. These were stated to have sizeable support from their respective communities. An example of this is the erection of a temple in the honour of Dacoit Man Singh in his native village as well as the support some other dacoits like Phoolan Devi have got from their communities.

            It is usually said that people vote for criminals out of fear. This is no doubt a factor, but it is not the only factor. It is supported by caste and creed loyalties which in some cases override objective considerations. The trend is more marked in rural areas where the differences on the basis of caste and creed are still strong. In urban areas, efforts of such candidates to enter the legislatures have not received that much public support; one of the reasons being that in urban areas the caste does not play that much important role in elections. However, in rural areas where the differences of caste and creed are still strong, feuds and rivalries exist between various social groups. This gives the criminal elements a chance of presenting themselves as a protector of their caste or community. This has resulted in the emergence of various “strongmen” who claim to represent a particular caste or social group. Due to this intergroup rivalry, these “strongmen” in certain cases are able to garner substantial support from their community.

Political & Administrative aspects

           Period of freedom movement was also a period of social churning. Leaders participating in freedom movement also had a vision of the society they wanted the country to have. These leaders also realized their social responsibility and when they acquired political leadership, they carried their concept of social responsibility into the arena of politics. However, situation changed with passage of time. Social work was relegated to the background and electoral victory became the primary concern. As the society was already fragmented on the basis of caste and creed, these divisions were exploited for electoral gains.  

            Once divisions on the basis of caste and creed were accepted there was no escape from acceptance of feuds and rivalries between these groups and supporting one group against the other. This also increased the importance of the influential persons of the community. Some of these influential persons were the “strongmen” referred above. These people had an additional advantage that these could come handy in cases of dispute with other groups. Influence of such people increased with time and during the elections there were frequent allegations of the election malpractices like intimidating voters, booth capturing etc. In the initial stages, such elements were subservient to the political class. However, with the growth of time, some sections of the political class became more and more distant from the public and hence relied more and more on such elements. Further divisive politics took its toll on the society and the dividing lines between various groups became more marked. This in turn increased the clout of such elements who now understood that instead of supporting a politician to get elected; it was more beneficial to get themselves elected as this would give them a direct control over administration. Some sections of the political class succumbed to the pressure from these elements resulting in their prominence.

            On the other hand, the establishment including the administrative, political and judicial establishments, has not been able to connect with the public and instill confidence among people at large. The administrative and judicial processes are long, expensive and cumbersome which the common man wants to avoid for lack of time and resources. These are favorable situations for development of an extra legal authority and wherever possible, elements referred above have tried to fill the vacuum for their respective communities. Those who are successful have been able to carve pockets of influence which has helped them in time of elections. 

Legal Aspects

       Section 8 of The Representation of the People Act bars a convicted person from contesting elections and by virtue of the recent judgment also from completing the term if he is a sitting legislator. However, in our circumstances, conviction against the powerful is difficult to get. Systems and procedures are lengthy, time consuming and prone to influence from the rich and the powerful. The victim is usually weak. In most of the cases, the victim succumbs to various pressures and falters in his resolve to get the accused punished.  Another aspect is that the system of forming a political party and contesting elections is extremely easy in India.  Candidates with criminal background have often used this easiness to their advantage. Whenever, such a candidate is denied ticket by any major political party, he would threaten to either float his political outfit or contest as an independent candidate and if has some local support from his community he could very well spoil the party for the political party which has denied him ticket. This increases the bargaining power of the tainted candidate vis-à-vis the political party.

            The Election Commission has suggested that The Representation of The People Act should be amended to provide that any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. As a precaution against motivated cases by the ruling party, it was to be provided that only those cases which were filed prior to six months before an election alone would lead to disqualification as proposed. It was also suggested that persons found guilty by a Commission of Inquiry should also stand disqualified from contesting elections. The suggestions are yet to be accepted.

Magnitude & Impact of the Problem

          

    In a democracy, the elected representatives are responsible for governing the country; therefore, it is of utmost importance, that the people who enter the field of politics have a clean image and high moral character. However, the current trends reflect otherwise. As per a report prepared by ADR India, out of 7810 candidates contesting last Lok Sabha elections, 1158 had criminal cases pending against them. Out of these, 608 candidates had criminal cases of serious nature pending against them. The above said report also states out of 543 elected candidates 162 have criminal cases pending against them. More or less similar situation exists in various state assemblies. The figures quite clearly exhibit the magnitude of the problem.

The impacts of this phenomenon like its causes are multi dimensional. A criminal is on the wrong side of the law and hence cannot be expected to make positive contributions to the legislative or administrative process. It also brings a sense of futility among the administration particularly the police administration and demoralizes them. The presence of tainted candidates in the law making institutions creates embarrassment for the country as well as the people. However, most importantly, rise of a criminal to high levels of powers has an adverse effect on the society. The immunity and success of these people lures more and more people to follow in their footsteps bringing in a degeneration of moral values in the society.

The recent judgment

            If we see the recent judgment in the above context, it would be more than evident that the judgment, though a step in the right direction, is not going to cleanse Indian politics. Conviction against a powerful person who is also a sitting legislator is difficult to get and is in practice very rare. Even then, as per the judgment, the higher courts have the power to stay the sentence as well as conviction and in case of stay of conviction, the disqualification arising out of conviction will cease to operate. Thus, even in case of conviction, a sitting member still has a chance of saving his membership although a lot in this case would depend upon the views of the Appellate Court. Further, the laws and judgments can handle only the legal aspect of the problem but unfortunately, it has other dimensions as well. Criminalization of politics did not emerge simultaneously with the democracy. It came up later due a number of social, political, administrative and legal factors. The factors which led to criminalization of politics still continue to exist. The stakes for criminals and the associated political class are very high and disqualification of a sitting legislator is a very mild deterrent. In any case, the criminal turned politician has nothing to lose. In case of conviction, he would have had to face the consequences in any case even if he had not entered politics; the benefits from his political plunge are an added advantage which can be used for personal gains or for trying to manipulate his cases. In the worst scenario, the criminal has the option of fielding his family member or his protégé as candidate and use his clout for gaining votes.

Possible Solutions

            As the problem is multidimensional, solutions to the problem should also be as such. On the legal front it would help if the amendments suggested by the Election Commission in The Representation of The People Act are implemented. Another thing that could be done is that there should be strict control on formation of political parties and contesting of independent candidates. This would restrict the bargaining power of the tainted candidates. Administration in general and police administration in particular should develop a people friendly approach and image so that people develop confidence towards the legal institutions. Justice Delivery system should be strengthened so as to provide speedy justice. While on one hand this will increase the faith of the people in the system, on the other hand it will result in speedy trial of tainted candidates. A speedy trial would also mean that a criminal will get less time to manipulate the case and would increase the chances of conviction. Political parties also need to understand that their compromising with principles for petty electoral gains is not in the larger interest of the country as well as for the genuine leaders as the genuine leaders run the risk of being overshadowed by criminal elements. The parties need to develop a consensus among themselves for not fielding such candidates. However, biggest responsibility lies with the people who possess the power to elect or reject any candidate. People need to arise above the factional interests and try to accommodate each other. Harmony among various groups would result in a peaceful atmosphere and a clear thinking which has the potential of sealing the fate of criminals and unscrupulous people. Social and non political organisations as well as the saner political elements should work among the people to increase awareness on this issue. Although the task is not easy and is time consuming, positive results in this regard would be more than worthy of any kind of effort.