Decriminalization of Indian Politics

December 17, 2014 by admin Leave a Comment

Trishala Sanyal
Editors Note: Several government-appointed Commissions have already made clear
recommendations for electoral reforms, but the political will to implement these
recommendations

in

letter

and

spirit

is

lacking. We

have

allowedcriminalisation in politics to go completely unchecked. This paper briefly makes a

critical analysis on this issue.
The function of the Parliament is not to govern but to criticize. Its criticism is directed
not so much towards a fundamental modification of the governmental policy as towards
education of public opinion. Invor Jennings[i].
The preamble of the Indian Constitution starts with We the people of India inculcating
the spirit of democracy in the minds of every Indian. India is such a populous country
that it ranks amongst the top 10 most populated countries. Taking into consideration
Indias humongous geographical area and demographic nature it is practically
impossible for the country to follow the norms of absolute democracy. Therefore in India
there is a concept of Representative Government which was given by John Stuart Mill.
According to the concept instead of an individual person a group of persons are elected
who are required to represent vicariously the aspirations and concerns of the people.
India as a Representative Government is so large and active each time that the speaker
of US Congress Sam Rayburn has remarked- Congress is the highest theatre that
anyone plays in upon this earth today. But these persons had not seen the Parliament of
India and its State Legislature in action[ii] With such a gargantuan parliament it is
impossible to elect every member who would be as innocent as a sheep.
De-criminalization is something which is much debated these days. De-criminalization
simply means legislation that makes something legal that was formerly illegal. The
makers of the constitution while drafting had laid down certain restrictions for the
persons while being chosen for either house of the parliament be it Legislative

Assembly or Legislative Council. Article 102 and 191 of the Indian constitution deals
with the provision regarding the disqualification for membership of the Parliament or
State Legislative Assembly. The Representation of Peoples Act, 1951 which was
enacted by the provisional parliament before the 1 st general elections Act was enacted
under article 379 of Indian Constitution which deals specifically with the people to
represent themselves in the elections. Sir Bertrand Russellhas rightly said, Our great
democracies still tend to think that a stupid man is likely to be an honest man than a
clever man.
The Representation of the People Act, 1951 was enacted by the Parliament of India to
provide for the conduct of elections of the Houses of Parliament and to the House or
Houses of the Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or in
connection with such elections and the decision of doubts and disputes arising out of or
in connection with such elections[iii].
The main issue regarding the Representation of Peoples Act, 1951 is its particular
chapters regarding disqualification. The act was amended several times but one of the
notable amendments is the Representation of the People(Amendment) Act, 1966 which
abolished the election tribunals and transferred the election petitions to the high courts
whose orders can be appealed to Supreme Court.
The Act provides a good definition of the term Disqualification in its section 7(b) as
disqualified for being chosen as, and for being, a member of either House of Parliament
or of the Legislative Assembly or Legislative Council of a State.. But the most heated
and controversial section of the Act 1951 is the section 8 which lays down the grounds
for disqualification of political criminals on the grounds of conviction. This section is
divided into 4 sub-sections wherein the first three sections states that if a person is
convicted for more than 2 years for the crimes mentioned in these sections would stand
disqualified for the period of six years from the date of conviction to contest elections.
Courts also have interpreted and laid down the importance of this section in the case
of K. Prabhakaran v.P. Jayarajan[iv]. It was stated in the case that the reason why this
section has been added into the representation of peoples act is to prevent
criminalization and keep persons with criminal background away from law and ensure

that those who are always involved in breaking laws must not get the chance to make
laws. The court in this judgment also clarified the Section 8(3)[v], that the person getting
convicted for period of less than two years several times will also stand disqualified if
that time adds up to 2 years.
With the inclusion of this acts section 8(4) the MPs and MLAs have got a protective
shield to continue in their posts, provided they had appealed or filed an application for
revision against their conviction in higher courts within three months from the date of
conviction. Sub-section 4 of Section 8 of the Act, 1951 is an exception carved out from
sub-sections (1), (2) and (3). The provision of this section states that notwithstanding
anything in the sub-section (1), (2) and (3) the disqualification would not be taken into
consideration in case of a person who on the date of conviction was the member of the
Parliament.
This section was declared as intra vires and just an exception to the Section 8 of the Act
1951 in the case of K. Prabhakaran v. P Jayarajan[vi]. Constitution Bench of the
Supreme Court, on January 11, 2005, in the K. Prabhakaran vs. P. Jayarajan case had
stated that these two groups of people (those who are convicted before the poll and
those convicted while being MPs and MLAs) are totally different and well defined groups
and this division cannot be held as unreasonable. In the K.Prabhakaran case it was held
that the main purpose behind creating the section 8(4) is not to provide any immunity to
the candidates but to protect the house. If the member of the house is convicted and
given imprisonment then he will have to forfeit his membership of the house which will
decrease the strength of the party to which it belong and also will make the party
unstable.
The members of the legislature are expected and directed to represent vicariously the
aspirations and concerns of the people whom they represent. Hence it is important for
the legislature of a representative democracy to be a true reflection of the aspirations
and dreams of the people and also to be fair, honest and accountable to the people they
represent. But nowadays India is witnessing a crisis of empathy, quality, fairness,
equality etc. amongst all the chosen MPs or MLAs. Not only is there a serious question
of propriety lying over the fairness of electoral procedure followed, an even greater
concern lies in the kind of people who are entering the polity of India. India stands

witness to an alarmingly high number of people with criminal background who have
polluted Indian polity. Though it has been almost 6 decades since Indias first ever
General Elections, the existing electoral laws have failed in more ways than one to
prevent the menace of criminalization in Indian politics
But recently in 2005 whenLily Thomas and an NGO Lok Prahari filed a Public Interest
Litigation questioning the validity of Section 8(4), the Supreme court in July 2013
passed a judgment which was exact opposite to what was decided 8 years back. By a
division bench of the Supreme Court, comprising of Justice A. K. Patnaik and Justice S.
J. Mukhopadhya, in a judgment delivered by Justice Patnaik, section 8(4) of the
Representation of People Act, 1951 was struck down as unconstitutional being beyond
the legislative competence of the Parliament. This sub section of Act 1951 was stated
as ultra vires the constitution. Fali Nariman, who argued the case for the petitioner,
argued, among other things that the Parliament is not constitutionally competent to
enact section 8(4). The court held that there is no provision in Articles 102 and 191 of
the Constitution which confers power on Parliament to make a provision to protect sitting
members from the disqualifications, it also said that the parliament lacks legislative
power to enact section 8 (4) of the Act and therefore it is ultra vires to the Constitution.
Further, the court relied on the Constitutional Benchs decision in Election Commission
of India v.Saka Venkata Rao[vii], wherein it was held that there will be same set of
disqualification for election as well as for continuing as member and so the parliament
does not have power to make different laws for a person to be disqualified under section
8(4) of the Representation of Peoples Act 1951.
Our constitution has a very important article which provides equality to all. Article 14 of
the Indian constitution is about Equality before law meaning thereby that all are equal in
the eyes of all. Stressing on the last four words In the eyes of law is it then justified to
give a different protection to the sitting MPs or MLAs with respect to other MPs or MLAs
who are currently not in power? The judgment in 2005 wherein Section 8(4) was stated
as intra vires the constitution was a clear violation of right to equality guaranteed by the
Indian constitution as in one case you are providing immunity to politicians falling under
sub-section 4 of section 8 whereas others were given no immunity who were in the subsections 1, 2, or 3. Judgment in the Lily Thomas case[viii] thus becomes more important

in this respect that it establishes a equality too while stating 8(4) as ultra vires the
constitution.
Before going into the issue of De-criminalization, let us first examine the Why and How
of criminalization. As to how criminals enter the political fields and what is their motive
behind this. And also we will examine that who, the people or the parties, is responsible
for the criminalization.
The main reason why criminals enter politics is because it is in the interest of the
political parties. These criminals have all sort of power, money, resources which are well
enough to help the party win over other parties. The reason why all politicians spoke in
unison in favour of the judgment of K. Prabhakaran[ix] is that this would provide them a
shield with which they will stand safe even if they have a serious crime charged. Vohra
Committee Report[x] on Criminalization of Politics which was constituted to identify the
extent of the politician-criminal nexus stated that the connection between criminals,
politicians and police and bureaucracy is now almost clear in all parts of the country and
also said that these political leaders get elected to local bodies by becoming the leaders
of gangs/senas. In the year 2009 wherein the 15 th General Elections for the Lok Sabha
were to be held it was found that among the 7810 out of 8070 candidates whose
affidavits were considered, 1158 candidates had criminal cases against them. Out of
these 1158 candidates, there were serious criminal cases pending against 608
candidates[xi]. Ironical as it is, a large number of people with criminal background not
only contest elections, but also subsequently manage to become the members of the
legislature. This is highlighted by the fact that as many as 162 Members of Parliament of
the 15th Lok Sabha have pending criminal cases. These 162 MPs, in total, have 522
cases pending against them. 76 out of the 543 MPs have serious criminal cases
pending against them. A matter of grave concern lies in the fact that there has been an
increasing trend in the number of MPs with criminal background, in comparison with the
statistical figure for 2004 where there were 128 MPs with pending criminal cases in
comparison with the 2009 figure of 162[xii].
The problem which arise out of criminalization is that once a criminal becomes a
politician, the police, whose job it is to keep him under check and investigate his crimes,
become his protectors. There have been several instances of persons charged with

serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending
their trial, and even getting elected in a large number of cases. This leads to a very
undesirable and embarrassing situation of law breakers becoming law makers and
moving around under police protection. There are many criminal gangs in India which
are based on caste-divisions. These groups take advantage of social cleavages and
position themselves as leaders or saviors of their caste or community, thus making the
whole community loyal towards them and even scared of them. That is why many
criminals enjoy fierce local support. With such caste support, strength and money
accumulated through crime, they have natural advantages in a local election. In our
political system, what matters most is to garner more votes than any of the rival parties.
Therefore, the more local support you gather makes often the difference between victory
and defeat. That is why politicians choose popular criminals masquerading as caste or
faction leaders as candidates. That is why sometimes mafia dons in jail win elections
with ease.
As was rightly said by Alan Moore People shouldnt be afraid of their government. The
government should be afraid of their people The main problem with todays population
is that they are scared. Politicians come and lure them or even scare them. But now with
the judgment given in the Lily Thomas case at least the villagers also would know that
choosing a criminal as their representative is illegal and they should not do it. Our
democracy provides for universal adult franchise wherein each and every individual
above the age of 18 gets a right to vote. But do they really vote for whom they think is
best for the job or the one whom the masses follow? We think that what the masses say
is right and we never want to know the reason as to why we are they actually following
them. The Indian democracy has many loopholes. One amongst them is that every
person who doesnt even know about the law or the politics is given the right to vote.
These type of people are those who can easily be influenced by power or money. This
all factors lead to increasing number of criminals in politics.
In a country wherein, 162 out of 545 Lok Sabha MPs and 1258 out of 4,032 sitting
MLAs have criminal cases pending against them[xiii], it is a big leap by the Supreme
Court towards depurating of Indian politics. Prior to this , as the reports suggested, were
many political parties wherein the parties were although stating that we always choose

the most honest persons but were giving tickets only on the basis of winnability of
candidates. The muscle and money power was what mattered the most to the political
parties when choosing their candidates.
But the question which arises after this judgement is whether the government will now
elect proper candidates or will they still carry on with the traditional style of election of
their candidates. A study of the candidates in Chhattisgarh has revealed that 113 of the
983 candidates have criminal cases pending against them. Of these, 66 candidates
have serious cases against them, which includes murder, attempt to murder, kidnapping
and crime against women[xiv]. The study has been done by Association of Democratic
Reforms. This itself states that despite of the judgment of the Honble Supreme court
the parties are still going forward with their own methods. So the main question is will
this judgment help our system? And why is that even after the judgment parties are
following their original trends?
The judgment of Lily Thomas case is expected to have far reaching effects. Umlesh
Yadav is the first politician to be disqualified by the election commission for a period of
three years for suppression of her election expenses incurred when she was selected as
a MLA to the Bisauli Constituency in Uttar Pradesh state assembly elections 2007. Lalu
Prasad Yadav was recently arrested in the Fodder scam and is now banned to contest
any elections for the next 6 years. So we see how this judgement has already started to
show its effects in the minds of the people and the government. Comment from
Hariharan after the judgment was enough to explain the whole effect and out comings
(the expected ones) of this judgments. He said We are not short of suitable persons to
represent us in the parliament and pass good laws. They do not come forward to
contest election for they have no money, no courage to face the mischief of hired
workers. Many people join the party only to get position. When they do not get ticket to
contest, they indulge in antiparty activities.It is high time we stop voting the criminals
and unprincipled persons who hop parties[xv]The very essence of democracy that
politicians of yesteryears, like Gandhi, Nehru and Patel stood for to serve the countrys
people and provide them clean, healthy and corrupt-free governance, was somewhere
lost in the recent times. Under these circumstances, in the current state, this landmark
ruling is more like a judicial revolution rather than being mere judgment.

Democracy is a faith in the spiritual possibilities of not a privileged few but of every
human being. - Sarvapalli Radhakrishnan .The Indian election system has somewhat
failed to function as an effective tool for democratic will of the people. It has failed to
provide general welfare to the masses. The election criteria wherein only age limit and
domicile certificate is needed to stand and contest elections has over the decades
allowed many persons with a political background to enter into the politics. So there
needs to be a change in attitude by the government and election commission towards
the rules for selection of candidates. Over the last six decades Indian politics has seen
various faces of criminalization and it has come across innumerable examples of
candidates contesting from prison and even managing to gain electoral success. On one
hand where a leader or a political party member needs to be free from unnecessary
abuses, India had been under such leaders but on another hand its not at all possible
for a country with a population of 121013422 people[xvi] and a country following
representative form of government to have a crime free politics. If the act of
decriminalizing the politics is passed then all the 545 members sitting in Lok Sabha
would have to be removed and subsequently new elections would happen which would
be time consuming and because of few members India may lose some very deserving
and honest leaders who were in power. It is needless blaming the political parties. As
Plato, the Greek philosopher said Tyranny naturally arises out of democracy.
Decriminalizing politics will have its own pros and cons. One hand people will argue it
will lead towards a clean politics and other would oppose it by saying the whole stable
framework of politics would collapse if accused MLAs and MPs are removed from their
position. It is a bitter pill to swallow by a common man but decriminalization is necessary
pill for every Indian.