Criminalisation of politics is something that has haunted Indian democracy for long. Hundreds of our elected representatives at all levels, from the parliament to the state assemblies and local bodies, have criminal antecedents. And they continue to get elected, cleverly skirting the law. And many also continue their criminal activities with impunity after being elected, as they know that they are now on the ‘right’ side of the law.
A major loophole existed in the law which enabled people with criminal backgrounds to participate as candidates in elections. Till now, while filing affidavits to be submitted along with the nomination papers before elections, the columns on declaration of criminal track records and disproportionate assets were often left blank by candidates with tainted backgrounds. This was so because returning officers had no power to take any action regarding anything not written in the form.
This loophole has now been plugged by a Supreme Court judgement by a bench comprising the Chief Justice of India P Sathasivam and Justices Ranjana P Desai and Ranjan Gogoi, delivered on September 13. Now, leaving any blanks on affidavits by prospective candidates has been made illegal. The nomination forms of such candidates are liable to be rejected by returning officers.
According to the bench, “The voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament/Assemblies… The ultimate purpose of filing an affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1) (a) of the Constitution (right to freedom of speech and expression).”
The returning officer can cancel an improperly filled form as it will “make it impossible for the Returning Officer to verify whether the candidate is qualified or disqualified which will indeed frustrate the object behind filing the same.”
The candidate should at least write ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns. But again, this puts them in danger of being implicated on charges of perjury for furnishing false information to returning officers. So, this judgement indeed puts candidates with spotty records in a spot, which concurs well for the democratic process which they represent, and which they should hold in the highest regard.
This judgement in an electoral issue is the latest in a series of such judgements in the recent past through which the apex court has been trying to improve the quality of the candidates who fight for seats in elections, and thus, cleanse the electoral process.
On July 10, a Supreme Court bench comprising justices AK Patnaik and SJ Mukopadhyaya had passed two landmark judgements apropos the Representation of the People Act (RP Act). Firstly, an MP or MLA convicted of any criminal offence attracting a punishment of two years and above will be disqualified from the house he is a member of, immediately. Secondly, a person in custody (both police and judicial), being ineligible to vote, is therefore also ineligible to contest polls.
According to reports compiled by the NGO, Association for Democratic Reforms (ADR), 162 out of the 543, or 30%, members of parliament (MPs) in the current Lok Sabha face criminal charges in various cases of which 76 cases involve imprisonment of more than five years. Similarly, 39 out of 230, or 17%, MPs in the Rajya Sabha face criminal charges (the seven nominated MPs’ records are not available to the public), out of which 14 have serious criminal cases pending against them. Among all the MLAs in the country, a total of 1,460 face criminal charges in various courts, 30% of which charges are punishable with more than five years' imprisonment.
Expectedly, the Election Commission and transparency activists welcomed the judgements, and expectedly, the politicians were up in arms. On September 6, the Lok Sabha passed an amendment to the RP Act which maintained the right of those in jail to contest polls, negating one of the landmark Supreme Court judgements (the Rajya Sabha had already passed it on August 27).
The hurry with which it was passed says a lot about the lot of our elected representatives. After just 15 minutes of discussions in the Lok Sabha, almost all parties joined together to pass the bill and thus bring about the amendment. The few members who wanted an elaborate debate were brushed aside.
Along with criminal influence, the influence of money has also been on the rise. As a July 2013 report released by ADR shows, whose penetrating analyses on all matters electoral have brought about a lot of awareness, crime and money have formed a highly successful nexus over the last ten years. Of the 62,847 parliamentary and assembly candidates since 2004, a good 11,063, or 18%, have declared criminal cases against themselves. Of these, 8 per cent have declared ‘serious’ criminal cases. And while the average assets of the 62,847 candidates stood at Rs 1.37 crore, those of MPs and MLAs stood at Rs 3.83 crore. Hence, money has a very big role to play now, and crime and money combined are destroying the fabric of the sacred process of electoral politics.
According to a prominent political analyst quoted in a report in the Hindu Businessline newspaper, the rising trend of criminalisation of politics, however, began earlier still. “Money started playing a big role after globalisation and the simultaneous rise of smaller parties. But, the blame lies squarely with the two major parties, Congress and BJP, who began ‘horse trading’ in an effort to drum-up majority to remain in power,” referring to the Jharkhand Mukti Morcha (JMM) bribery scandal in 1996, when 10 MPs, comprising those from JMM as well as from Janata Dal, accepted bribes from the Congress to cast their votes to defeat a no-confidence motion in the Lok Sabha against the minority Congress government of Prime Minister PV Narasimha Rao.
Linked to this influence of crime and money, is a recent report, again by watchdog ADR, that over 75% of the funding received by political parties is from unknown donors. The total funds received by the six national parties between 2004-05 and 2011-12 was Rs 4,895.96 crore, of which just 8.9% was from known donors. Around Rs 3,674.50 crore (75.5%) were anonymous contributions. All these unknown donations point to the deep relation between crime and money in Indian politics.
Given the propensity of political parties to field criminal candidates, mostly for using their muscle and money power to influence electorates, the tug-of-war between the courts and the politicians is bound to continue. The courts can pass orders, but, as seen from the amendment to the RP Act, the legislature also has the power to nullify some of them. The efforts of activists and the common people must continue to stem this tide of criminalisation of politics, and it is hoped that honest politicians would ultimately triumph and lead parties out of the morass of depraved politics.