Criminalization of Politics

When anti-social elements enters in the electoral contest it may be called criminalisation of politics. It takes place becuase of the strong nexus that has developed between the criminals and some politicians. The criminal justice system has many inbuilt delays where it takes about 15 years before a criminal case is disposed off by the courts. By going on appeal to the higher courts a convicted person is able to contest an election for the duration of pendency of his appeal as his conviction is stayed by the higher court. The rate of conviction in India has been steadily going down which means many of the accused may go unpunished in a court of law and they cannot be prohibited from contesting elections. The FPTP system in case of multi-cornered contests does not discourage criminals from contesting election because it allows as low as 25-30% of the vote share a candidate can get elected. there is steady decline in value system in the society which does not help in eliminating the criminals in contesting elections.

Consequences of status quo:

There is increased use of money and muscle power during the election by criminals which affect the probity in public life. There is increased corruption in public life which weakens the state institutions such as executive, bureaucracy, legislative , judiciary etc. There is also increase in violence both during and after election. It sets a bad precedence for the youth to follow. It allows the law breaker to get elected as law maker. The parliament looses its moral authority to legislate and council of ministers by including criminals as its members may loose its legitimacy to administer the country. The parliament also fails to enact necessary laws for the effective administration of the country.

Measure taken and recommended:

Judicial: The Supreme Court of India through its progressive interpretation ( this is judicial activism ) has introduced following measures for decriminalization of politics:

a) In 1997 the Supreme Court directed the High Court not to suspend the conviction of a person on appeal if he is convicted and sentenced under Prevention of Corruption Act, 1988 by a Trial Court.

b) In Union of India vs Association of Democratic Reform (ADR) , 2002 case ; the Supreme Court directed that all the candidates contesting election to disclose their assets and liabilities details, educational qualifications, criminal conviction and pending criminal cases if any so that the voters can reject the criminals.

c) In Ramesh Dalal vs Union of India , 2005 case ; the Supreme Court of India ruled that even a legislature of state or center shall be disqualified from contesting election if on the day of filing nominations he stands convicted in a court of law.

d) Section 8 (4) of Representation of People Act, 1951 provides that if a member of legislature is convicted and sentenced to >2 years of imprisonment; shall be disqualified from being MP or MLA. However such disqualification shall take effect 90 days after his conviction in a court of law. The Supreme Court of India in Lily Thomas vs Union of India , 2013 case held that under Article 101(3) and 190(3), the disqualification of MP or MLA respectively ; under any law made by legislature is automatic and take immediate effect. Therefore 90 days grace period given to legislature has been held unconstitutional and void.This verdict is in line with Right to Equality.

e) In People's Union for Civil Liberties vs Union of India , 2013 case ; the Supreme Court of India ruled that a voter enjoys a right to negative vote , under Article 19 (1)(a) read with Art 21 . It directed the Election Commission to include the NOTA (Non of The Above ) choice for the voters to exercise the right to negative vote . It has the potential to encourage the political parties to nominate the clean candidates to contest the election.

f) In  Public Interest Litigation Forum vs Union of India , 2014 case; Supreme Court of India directed Trial Court to complete the trial of a case involving a MP or MLA within a year after the framing of criminal charges by the court.

Measures taken recommended by Election Commission:

a) In August 1997 the ECI directed all the Returning officer to reject the nomination papers of any person who stands convicted in a court of law on the day of filing his nomination paper even if his sentence is suspended.

b) ECI has recommended for a 2-Ballot system (currently in practice in France) which means that the winner has to get more than 50% total polled valid votes. In this case currently NOTA votes are not calculated in total valid polled votes but if the suggestion implemented then NOTA votes will be considered as Right to Reject and hence will be counted as Valid Polled votes. See below :

​c) Introduction of Right to Reject in the EVM.

d) Candidates charged of serious crimes should not be allowed to contest.

e) Amendment of Section 125 (A) of R.P Act, i.e on submission of false affidavit a punishment of 6 months is prescribed needs to be changed to 2 years.

These are some of the Criminalisation of Politics and measure taken and recommended. However not a single recommendations of ECI has been implemented by government.