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A Penchant For Criminality

Title -A penchant for criminality

Author –Ravideep Singh & Upkar Kaur

Table of Contents
ABSTRACT.................................................................................................................................................. 2
Introduction ................................................................................................................................................... 2
Definition and Nature: .................................................................................................................................. 3
Data by the Association for Democratic Reforms (ADR) ............................................................................ 4
Extent of criminalization of Indian Politics: ................................................................................................. 5
Causes of Criminalisation of Politics: ........................................................................................................... 5
Corruption ................................................................................................................................................. 5
Criminality and Winnability ..................................................................................................................... 5
Vote Bank ..................................................................................................................................................... 6
Denial of Justice and Rule of Law ............................................................................................................ 6
Black money in elections .......................................................................................................................... 6
Lack of Intra-party democracy.................................................................................................................. 6
Lack of adequate deterrence ..................................................................................................................... 6
First Past the Post (FPTP) electoral system .............................................................................................. 7
Loopholes in the functioning of Election Commission............................................................................. 7
Civil society .............................................................................................................................................. 7
Lack of ethics and values in Indian politics .............................................................................................. 7
Consequences of criminalization of politics: ................................................................................................ 7
Legal Framework: ......................................................................................................................................... 8
Constitutional Provisions: ......................................................................................................................... 8
Representation of People’s Act, 1951: ...................................................................................................... 8
Recent Development in Criminalisation of Politics ...................................................................................... 9
Regulatory Commission: ............................................................................................................................ 11
Important Recommendations ...................................................................................................................... 11
Law Commission Recommendations: .................................................................................................... 11
Election Commission Recommendations: .............................................................................................. 12
Conclusion .................................................................................................................................................. 14
REFERENCES ........................................................................................................................................... 15

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

ABSTRACT
The criminalization of politics continues to be a very big concern, with an increase in the number
of MPs with criminal records in 2009 from 150 to 186 in 2014. Even the number of MPs with
serious criminal cases has gone up. The biggest reason for this seems to be the undemocratic and
autocratic selection and nomination of candidates by political parties. In order to ensure the win
ability of candidates, parties ignored honesty to give preference to muscle power and money
power. It is very important that democracy forms the basic structure of the society. Effort must
be made to make society democratic. Democracy should be the value system of Indian citizens.
The responsibility of survival of democracy can’t be shifted to the state institutions alone. The
citizens have an equal part to play in the healthy functioning of the democracy. This paper is
concerned with the issues why the crimilization of politics on rapid growth and how to
decrimilize the politics with the help of judicial reforms and with the reference of international
law concern with it and how the implementation of these laws can be done without any
loopholes. This research paper is dealing with the present scenario and the law and how it can be
more effective.

Introduction

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

India is a democratic country and the Indian constitution gives the equal opportunity to become
the representative of the people and elect the candidate of their choice to the all citizens. India is
a developing country and it’s facing many problems from the independence to till date. In India
politics is a game of money and muscle power which make difficult for the common people to
participate in the elections. The elections in India is like a war to win this elections the candidate
use the every fair and unfair methods, for this they need muscle power and money and for
accomplishment of their targets they hire “Gunda’s” and take money from them to win
elections. In favor when they come into a power they do the works of those persons, basically
using the policy of give and take. But now time is change and that bad moral person rather than
providing the money and muscle power to someone they itself elect the elections and become the
rule breakers to rule maker. In the Supreme Court verdict it’s made is mandatory to that persons
who are participating in the elections, they have to disclose their Information of Property,
Education and the criminal charges against them. But In 2014 Parliament election again 17%
people elected with a criminal records. This shows that people don’t mind to elect the persons
with the criminal charges. In 2018 Supreme Court in latest judgment shows their concern of
criminalization of politics and issued various other guidelines for the same and give strength to
legislature to come with another effective law to decrimilisation the politics.

Definition and Nature:


At present we very often come across the words criminalisation of politics. The meaning of the
term is quite known to educated people and newspaper readers. For academic purposes a
definition is to be given here. When politics or political power is used by self-interest-seeking

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

persons for pecuniary gains or various other advantages such as to get special position in
administration or to rise to the higher stage of administration which is normally not feasible.

Criminalization of Politics means that the criminals entering the politics and contesting elections
and even getting elected to the Parliament and state legislature.

It takes place primarily because of the nexus between the criminals and some of the politicians.

The criminals need the patronage of politicians occupying public offices to continue with their
criminal activities and the politicians need the money and muscle power that the criminals can
offer to the politicians to win elections. In course of time, the nexus led the criminals themselves
to contest elections.

Rousseau (1712-1778) was a great admirer of democracy, but he was quite apprehensive of its
real existence. He thought that people are corrupt and this will lead to the fall of democracy. That
is why we find him saying: were there a people of gods, their government would be democratic.
So perfect a form of government is not for men.

Even in Rousseau’s time there were great inequalities of property and wealth. Some people
earned property and built up wealth through unfair means and this created un-equalities in wealth
and power. So wealth was used to get patronage in political arena and political power was also
used to get wealthy.

Data by the Association for Democratic Reforms (ADR) for the Lok Sabha and
Assembly elections showed the following:

 Extent of criminalisation of politics, the Centre has informed the Supreme Court that
1,765 MPs and MLAs, or 36% of parliamentarians and state assembly members, are
facing criminal trial in 3,045 cases. The total strength of lawmakers in Parliament and
assemblies is 4,896

 17% of 5,380 candidates contesting the Lok Sabha election 2014, had declared criminal
charges in the affidavits submitted to the Election Commission

 10% had declared serious criminal charges such as murder and rape charges.

 States with the highest percentage of candidates facing criminal cases are Goa (32%),
followed by Kerala, Bihar and Jharkhand.

 Proportion of MPs facing criminal charges in 15th Lok Sabha was 30%, and those facing
serious criminal charges was 24%

 Uttar Pradesh, Gujarat and Maharashtra top the list with the highest percentage of MPs
accused of criminal and serious criminal offences.

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

 Criminal backgrounds are not limited to contesting candidates, but are found among
winners as well. 13.5% of the winners between 2004 and 2013 had criminal charges
against them (Law Commission, Feb 2014, 244th Report)

Extent of criminalization of Indian Politics:

 The Vohra Committee Report in 1993, and the report of the National Commission to
Review the Working of the Constitution (NCRWC) in 2002 confirmed that there has
been a growing trend of persons with extensive criminal backgrounds entering politics.

Causes of Criminalisation of Politics:


Corruption
 In the present scenario, political parties need funding for their works and the campaign
for the election. The polititical parties while distribution the ticket to thier candidates kept
in their mind the candidate shall be economically strong as well as socially and politically
and for taking the tickets candidates pay the huge amount to the political parties as well
spend on the campaign of the election. In every election all parties without exception put
up candidates with a criminal background. Even though some of us whine about the
decision taken by the parties, the general trend is that these candidates are elected to
office.

The people with criminal background comes into politics with their money and muscle
power and get elected as a member of parliament and state legislatures.By acting in such
a manner, we fail to realize that the greatest power that democracy arms the people is to
vote incompetent people out of power.

Criminality and Winnability


 By the election commission found that candidates charged with a crime actually fare
better in elections than clean candidates: Only 12% of candidates with a “clean” record
win on an average, 23% of candidates with some kind of criminal record win which
implies that candidates charged with a crime actually fare better in elections than ‘clean’
candidates. This, as per the commission, has resulted in the tendency for candidates with
criminal cases to be given tickets a second time and not only do political parties select
candidates with criminal backgrounds, but there is also evidence to suggest that untainted
representatives later become involved in criminal activities and, thus, the incidence of
criminalisation of politics is pervasive, thereby making its remediation an urgent need.

 The evident link between criminality and the probability of winning is further reinforced
when we look at the winnability of a candidate.

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

 While any random candidate has one in eight chances of winning a Lok Sabha seat, a
candidate facing criminal charges is twice as likely to win as a clean candidate.

Vote Bank
 The political parties and independent candidates have astronomical expenditure for vote
buying and other illegitimate purposes through these criminals or so called goondas. A
politician’s link with them constituency provides a congenial climate to political crime.

 The majority of the voters are maneuverable, purchasable. Most of them are individually
timid and collectively coward. To gain their support is easier for the corrupt.

 In India majority of the vote bank is divided into their personal interest and believe and
people don’t think before casting their vote and they just cast their vote on the basis of
the candidate belongs to their community cast or race.

Denial of Justice and Rule of Law


 The voters, political parties and the law and order machinery of the state are all equally
responsible for this. There is very little faith in India in the efficacy of the democratic
process in actually delivering good governance. This extends to accepting criminalization
of politics as a fact of life.

 Toothless laws against convicted criminals standing for elections further encourage this
process. Under current law, only people who have been convicted at least on two counts
be debarred from becoming candidates. This leaves the field open for charge sheeted
criminals, many of whom are habitual offenders or history-sheeters.

Black money in elections

 Electoral politics is largely dependent on the money and the funding that it receives.
Since candidates with criminal records often possess greater wealth, they ensure greater
inflow in money, labour and other advantages that may help a party in successful
campaign, and also possess greater ‘winnability’

Lack of Intra-party democracy

 Political parties in India largely lack intra-party democracy and the decisions on
candidature are largely taken by the elite leadership of the party. Thus, the politicians
with criminal records often escape the scrutiny by local workers and organisation of the
party.

Lack of adequate deterrence

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

 Due to the low levels of convictions of MPs and MLAs, and delays in trials political
parties are not deterred from giving tickets to criminals.

First Past the Post (FPTP) electoral system


 FPTP electoral system allows a candidate to be declared elected from the constituency on
the basis of plurality of votes polled and not on the majority of votes polled.

 Thus, a candidate with as low as 25-30% of valid votes polled may get elected. Criminals
do not find difficult to secure the votes because of the use of their money and muscle
power.

Loopholes in the functioning of Election Commission


 The Election Commission has prescribed forms for the contestants of elections to disclose
their property details, cases pending in courts, convictions etc. while filing their
nomination papers. However, these steps have not been stringent enough to break the
nexus between crime and politics.

Civil society

 in India has failed to check criminalization of politics due to resistance from


establishment, prevalent use of money and muscle power and lack of voter awareness

Lack of ethics and values in Indian politics

 further accentuates the problem of criminalization. The political parties have been
reluctant in checking criminalization for own vested interests.

Consequences of criminalization of politics:


1. The presence of people with criminal backgrounds in politics and law-making of the
country has negative impacts on the quality of democracy

2. Enormous amounts of illegal money flow into the electoral process due to extensive links
with the criminal underworld

3. Criminalization of politics also has the consequence of obstructing the process of justice
and causing further delays in trials.

4. Criminals entering politics further increases corruption in public life and has an adverse
negative impact on the state institutions including the bureaucracy, the executive, the
legislature and the judiciary.

5. Criminalization of politics introduce a culture of violence in the society and sets a bad
precedence for the youth to follow.

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

Legal Framework:
Constitutional Provisions:
1. Qualification:Article 841 of the Constitution

2. Disqualification: Article 1022 states that a person shall be disqualified from being chosen,
and from being a member of either House of Parliament if:

 he holds an office of profit,

 if he is of unsound mind and so declared by a competent court,

 if he is an undischarged insolvent,

 if he is not a citizen of India and if he is disqualified by any other law made by


Parliament

3. Corresponding provisions for members of State Legislative Assemblies are found


in Articles 173 and 1913.

Representation of People’s Act, 1951:


 Parliament through the RPA has prescribed further qualifications and disqualifications for
membership to Parliament or to a Legislative Assembly.

 Section 84 of the Act lists certain offences which, if a person is convicted of any of them,
disqualifies him from being elected, or continuing as, a Member of Parliament or
Legislative Assembly.

 A candidate to any National or State Assembly elections is required to furnish an


affidavit, in the shape of Form 26 appended to the Conduct of Election Rules, 1961.
Failure to furnish this information, concealment of information or giving of false
information is an offence under Section125A of the RPA.

1
Constitution of india,1949
2
Supra 1
3
Supra 1
4
Representation of the People Act, 1950

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

Recent Development in Criminalisation of Politics:


2002– In in Union of India (UOI) v. Association for Democratic Reforms and Anr5, the SC
held that that every candidate, contesting an election to the Parliament, State Legislatures or
Municipal Corporation, has to declare their criminal records, financial records and educational
qualifications along with their nomination paper.

2005- In Ramesh Dalal vs. Union of India, the SC held that a sitting MP or MLA shall also be
subject to disqualification from contesting elections if he is convicted and sentenced to not less
than 2 years of imprisonment by a court of law.

5
(2002) 5 SCC 294

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

Persons can’t fight from Jail:

The apex court of India in a judgment Lily Thomas v. Union of India6 on July 11, 2013
declared that persons in jail or police custody cannot contest elections to legislative bodies. The
order was passed by the Supreme Court along with the landmark verdict that MPs, MLAs and
MLCs would be disqualified the day they were convicted. This double whammy against the
criminals in Indian legislatures is expected to go a long way in cleaning up politics.

The Supreme Court bench of Justices A. K. Patnayak and S. j. Mukhopadhyaya ruled only an
elector can contest the polls and he/she forfeits the right to vote during imprisonment or in police
custody. The court based its order on provisions of the Representation of People’s Act. Sections
4 and 5 of the Act lay down that in order to be elected to parliament or state legislatures one must
be an elector.

The bench also referred to Section 62(5) of the Act. which says no person shall vote at any
election if he is confined in a prison whether under a sentence of imprisonment or transportation
or otherwise or in a lawful custody of the police. The apex court also took notice of the fact that
crimes in politic have risen from 128 to 162 between 2004 and 2009.

The Supreme Court struck down a provision in the electoral law that protects the convicted law-
maker from disqualification on the ground of pendency of appeal in the higher courts. The
highest court also made it clear that MPs, MLAs and MLCs will stand disqualified on the date of
conviction. The Court said parliament had exceeded its powers by enacting the provision Section
8(4) of the Representation of People’s Act that gives a convicted law-maker the power to remain
in office on the ground that appeals have been filed and decision is pending. But the bench of
Justices A. K Patnaik and S.J. Mukhopadhayay, in its 41 page ruling, clarified that convicted
law-makers, whose appeals were pending prior to their verdict, were saved as it would come into
effect prospectively.

2015: In Krishnamurthy v. Sivakumar&Ors7. the SC held that disclosure of criminal


antecedents (especially heinous crimes) of a candidateat the time of filing of nomination paper as
mandated by law was a categorically imperative.

2018- In Public Interest Foundation & Others Vs Union of India8, left the matter of
disqualification of politicians carrying criminal charges against them, to the Parliament saying
that the court cannot add to the grounds of disqualification. However, it made the following
directions:

 While filling the nomination forms, candidates must declare their criminal past and the
cases pending against them in bold letters.

6
(2013) 7 SCC 653
7
AIR 2015 SC 1921
8
SCC OnLine SC 1617

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

 Political parties are also responsible for putting up details of criminal cases filed against
their candidates on their websites.

 Candidate and the concerned political party will have to issue a declaration in widely
circulated newspapers in the locality and in electronic media about his or her criminal
antecedents

 Parliament must legislate on the matter to ensure that candidates with criminal
antecedents do not enter public life or become lawmakers

Analysis of the SC Recommendations:

The SC recommendations have been criticised on the following grounds:

 Parliament, regardless of who is in power, has always been reluctant to legislate on the
issue.

 Voters do not generally read the websites of political parties.

 The recommendation regarding publicity campaigns about the criminal background of


candidates by political parties is counter-intuitive and there is no incentive for political
parties to publicise something which will go against them.

Regulatory Commission:
The Independent Regulatory Commission is an important weapon at the hands of the
administration to control the economic and other activities of the various service providers. The
system of constituting Independent Regulatory Commission was first introduced in USA. The
chief aim was to control the private enterprises which provide all sorts of public utility services.

The private organisations also control major parts and aspects of both state and federal
administration. In fact in USA, the federal government plays minimum role in administrative
system and in providing various services. Because of this the American government felt the
necessity of regulating the activities of the private organisations that provide services. In India
there are also Independent Regulatory Commissions. In recent years the necessity of setting up
of such commissions has increased several times.

Important Recommendations
Law Commission Recommendations:
The Law Commission in its 244th report on Electoral Reforms titled “Electoral
disqualifications” had put forward recommendations on de-criminalization of politics. The main
recommendations include:

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

1. Expediting trials in relevant courts where a case is led against a sitting MP/MLA and to
conduct the trial on a day-to-day basis with an outer limit of completing the trial in one
year.

2. Retroactive application– from the date the proposed amendments come into effect, all
persons with criminal charges (punishable by more than five years) pending on that date
are liable to be disqualified subject to certain safeguards.

3. The punishment for filing false affidavits under Section 125A be increased to a
minimum of two years, and that the alternate clause would be removed.

4. Conviction under Section 125A should be made a ground for disqualification under
Section 8(1) of the RPA, 1951.

5. The filing of false affidavits should be made a corrupt practice under Section 123 of the
RPA.

Election Commission Recommendations:


The Election Commission in its “Proposed Electoral Reforms” (2016) recommended that:

Persons charged with cognisable offences should be de-barred from contesting in the elections,
at the stage when the charges are framed by the competent court provided the offence is
punishable by imprisonment of at least 5 years, and the case is led at least 6 months prior to the
election in question.

Criticisms: The recommendation has been criticised primarily on two grounds:

 ruling politicians will misuse this against the opposition

 the law of the land assumes everyone to be innocent till proved guilty or convicted.

2nd ARC Recommendations:

The Second Administrative Reforms Commission in its fourth report on Ethics in Governance
(2008) made the following recommendations:

1. Section 89 of RPA needed to be amended to disqualify all persons facing charges


related to grave and heinous offences and corruption, where charges have been framed
six months before the election.

2. It also supported the proposal of including filing of false affidavits as an electoral


offence under Section 3110.

9
Representation of the People Act, 1950
10
Supra 5

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

Way Forward:

1. The legal framework needs to be reformed to effectively curb the steady flow of
criminals into the political process.

2. The issues of the limited deterrence posed by disqualification upon conviction, and the
delays in trials of influential persons that result in a subversion of the process of justice
needs to be urgently addressed.

3. The Election Commission must take adequate measures to break the nexus between the
criminals and the politicians. The most important step in this direction would be checking
the use of black money in party and election funding.

4. Intra-party democracy should be strengthened for better scrutiny and selection of


candidates.

5. A strong political will is required on the part of government to decriminalize the entire
political system by enactment of required legislations and taking adequate measures.

6. Politics can only be decriminalized through larger public awareness and public
participation in elections, politics and governance. Further, electoral process should be
made more inclusive through wider participation from all sections of the society

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

Conclusion
Crimilization of politics is a serious concern for the whole country to save its sovereignty.
According to the center submission to the supreme court that the 36% MP’s and MLA’s facing
the serious criminal charges trails. Which shows that the more then 1/3 lawmakers are serious
law breakers and how can we expect from them a good governess. In Public Interest
Foundation & Others Vs Union of India supreme court gives various guidelines to de-crimilize
the politics and also states that it’s a legislature subject to make an effective law to control the
crimilization of the politics. In recent Papu Yadav, Lalu Parshaad Yadav and Navjot Singh Sidhu
were barred for 6 years of contesting an elections. Representation of people act is barred
politicians on a list of offenses and giving false evidence should be included in this list and
enhance the imprisonment for giving a false affidavit by the politicians. The guidelines of the
supreme court should be implemented strictly as well as make legislation over it. The major
reason of crimilisation of politics is unawareness of peoples, they accept the politicians with the
criminal records and send them to parliament. To decrimilize the politics there should be
working on political education of people and politically educated them at ground level.

Author –Ravideep Singh & Upkar Kaur


A Penchant For Criminality

REFERENCES

STATUTES

 Indian Penal Code, 1860


 The Representation of the People Act, 1951

Other Sources.

 Law commission reports


 Administrative Reforms Commission reports
 Election Commission Recommendations

ONLINE SOURCES

 SCC Online
 Indiankanoon.com
 Law Finder
 https://blog.forumiaas.com/criminalization-of-politics-in-india/

Author –Ravideep Singh & Upkar Kaur