Events & Issues

New Delhi, 2 September 2013

Criminals In Politics

NO LIBERATION FOR INDIA

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

To nullify a recent order of a two-judge bench of the Supreme Court pertaining to disqualification of MPs and MLAs convicted of a crime, the Rajya Sabha passed a bill to amend the Representation of People’s Act.  In the context of the hectic two-way traffic of criminalization of politics and politicization of criminals, the interaction of Parliament and the Supreme Court deserves closer watch. Indeed, for the Rajya Sabha, it was one of the rare instances of unanimity in the House normally seen only on issues related to enhancing the privileges of members.

The court order had struck down Section 8(4) of the RPA, which allows convicted MPs, MLAs, and MLCs to continue in their posts pending disposal of their appeals. By this, the division bench has overruled the verdict given by a Constitution bench in 2005 which   declared this section as “reasonable”. The court also declared that those confined in prison or held in police custody could not contest elections. The order, however, is not applicable to persons held in preventive custody.

The Union Government has also filed a review petition in the Supreme Court to reverse the court’s verdict prohibiting people in police or judicial custody from contesting elections. Its contention is that it is a constitutional issue and must be heard by a Constitution bench.

The amendment seeks to add a proviso to Sub-section (2) of Section 62 of the Act.  It removes the bar on jailed people from contesting elections by stating that a person does not cease to be a voter while in detention and his name continues to be on the electoral roll.  He/she is an elector and can file nomination for election.

The Law Minister identified the root cause for the bar order issued by the Supreme Court on the prevailing political environment in which “the political class is being looked upon with suspicion”. He admitted that there was a general perception that politicians were criminals but claimed that parliamentarians were the most accountable set of people in the country.

According to the data collected by the National Election Watch (NEW), 162 out of 543 members of the Lok Sabha and 1258 out of 4032 members of State legislatures have criminal cases against them. Cases include some serious offences also like rape, murder, and kidnapping. The number of tainted parliamentarians seems to be increasing as some reports put the figure as 128 in the 14th Lok Sabha and 153 in the 15th Lok Sabha. They come from different parties – old and new, national and regional, ruling and Opposition, “secular” and “communal”. State legislatures are also in the same boat. In 2011, 35% of the MLAs elected in West Bengal, and 33% each in Assam, Kerala, Puducherry, and Tamil Nadu had criminal cases pending against them.

There has always been the problem of criminal elements managing to enter the portals of   Government in any type of polity. It signifies the mutual relation between power without authority and legitimate power. Both seem to need each other for survival. Many countries all over the world are today faced with the problem of cleansing politics from unsocial and criminal elements.

Constitutional reforms in India, even during the British period, have taken note of the need to create a good image of law-making bodies. The Government of India Act, 1935, contained provisions regarding disqualifications of a person for contesting elections and for continuing as a member of a legislature. They include persons convicted and found guilty of electoral offences, and persons convicted and sentenced to transportation and imprisonment for not less than two years by an order passed by a civil or criminal court.  The Act specifically barred persons serving a sentence of transportation or imprisonment in criminal cases from being chosen as a member.

In the case of an appeal pending in a court, the concerned member could retain his seat till the disposal of the appeal, but could not take part in the proceedings of the House or in voting.

The Constitution of independent India substantially altered this provision by introducing a new clause for disqualification for membership of the Lok Sabha and State Legislative Assembly under Article 102 (1) (e)  and 191 (1) (e) which reads : “ if he is so disqualified by or under any law made by Parliament”.  Any question regarding disqualification of a member has to be referred to the President in the case of a Parliament member and the Governor in the case of an Assembly member and his decision is final.

The Union Government’s argument today is based on these Constitutional provisions that provide for “distinct treatment for members” and has granted Parliament the power to provide for additional disqualifications to the extent that they are so warranted in the interest of continuity and continuation of the House.

The RPA, 1951 gives the major heads of conviction and the extent of punishment that will entail disqualification. The controversy today is extension of a hotly debated two decade old problem of liberating politics from the clutches of criminal elements.

The famous Vohra Committee was appointed by the Centre in July 1993 to take stock of all available information about the activities of crime syndicates/mafia organizations allegedly developing links with political functionaries and the protection enjoyed by them. This unholy nexus had vitiated the political atmosphere in the country.

The Committee report clearly pointed to the existence of “nexus between the criminal gangs, police, bureaucracy, and politicians” in various parts of the country, and to the inadequacy of the law to check mafia activities. It recommended a stringent law to curb criminal elements in politics.

The report also suggested the setting up of a nodal agency under the Ministry of Home Affairs for collation of information received from intelligence agencies. It was to be assigned the job of probing into the nexus among mafia dons, politicians, bureaucrats, and even judges as mentioned by the Vohra Committee and monitoring all investigations initiated on this. 

Still, criminal elements continue to haunt political bodies including legislative and executive bodies. Statistics of members with proved or unproved criminal associations continue to make interesting reports after every election. 

President K R Narayanan once suggested that if political parties refrained from giving tickets to candidates with criminal background, it would be possible to curb criminalization of politics effectively. Former Prime Minister Vajpayee once declared his electoral fight in Bihar as a fight against criminalization of politics.

Such advice turns meaningless where the power centre itself becomes suspect.  Criminalization takes new forms by entering new areas – government contracts and projects, financial markets, real estate enterprises, infrastructure projects, film industry and so on.

Unfortunately, the ‘aam admi’ seems to be blissfully ignorant of political goondaism and lawlessness going on right before his eyes. Even knowledgeable people hail electoral victory as public acceptance and approval of even crimes. Unless people learn to differentiate lawful authority and unlawful power, public good and private patronage, electoral victory and good governance, populism and development, crooked and criminal elements will play havoc on Indian politics.  It is time for the Indian electorate to wake up and cleanse public life. ----INFA

(Copyright, India News and Feature Alliance)