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.
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.
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