Events
& Issues
New
Delhi, 21 February 2020
Supremacy of SC
TOWARDS CRIME MUKT
POLITICS
By Dr S.Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court has given a shock treatment
to all political parties by passing certain directions to curb the “alarming”
rise in criminalisation of politics by making it mandatory for them to justify
fielding tainted candidates in polls. All parties are now required to give wide
publicity through newspapers and social media about the criminal antecedents
(if any) of the candidates nominated to contest an election and provide the
reason for selecting them and not others without criminal background.
Truly, the Supreme
Court must have lost patience constantly hearing cases against political power-holders
and wants to lay down norms for vetting candidates seeking membership of
legislative bodies. What the Election Commission started seems to have received
not just the concurrence of the Supreme Court, but more than that, its active
involvement and actual takeover of the task.
This stand of the SC is
modification of its own earlier view of non-involvement in this matter. Hearing a PIL seeking to debar elected
members against whom grave criminal charges had been framed, the Supreme Court
in 2015 maintained that it could not step into the arena marked for
legislatures and that parliamentarians should take a call and enact a law. Again
in 2018, a Constitution Bench, hearing petitions to bar tainted politicians
from contesting election, said it could not legislate for Parliament. “The
court declares the law, the Parliament makes the law”, said the court. It
expressed anguish at the helplessness of the society to prevent criminalisation
of politics at the very entry-point.
The present order is issued
in a contempt petition filed against the EC for non-compliance of its order
passed in 2018 regarding giving information on criminal antecedents of
candidates fielded by parties. That order given by a Constitutional Bench said
that rapid criminalisation of politics cannot be arrested by merely
disqualifying tainted legislators, but should begin by “cleansing” political
parties. The Court has asked for compliance report in 72 hours.
Indeed, it is interesting
to read a report simultaneously appearing in a national newspaper that a
three-time MLA in Chhattisgarh confessed to the police to committing double
murder in 2016!
The Court has
directed all parties to upload information regarding pending criminal cases
against the selected candidates within 48 hours of selection or two weeks
before the beginning of nominations. It is a tall order which may well shake
all parties without exception, for failure would mean defamation of court
order.
The reason for selection
should provide his/her qualifications, achievements, and merits and not the
undefined ability to win in the polls. Electoral politics in democracies has successfully
delinked qualities and qualifications from vote capturing ability. The SC justifies
its recommendations on the ground that between 2004 and 2019, percentage of
tainted MPs had increased steadily from 24% to 44%. The increase in percentage
of candidates with criminal cases was 13.3% in 2004, 14.5% in 2009, 17.1 % in
2014, and 18.9 % in 2019.
The Report of the Association
for Democratic Reforms which analysed the background of 4,845 out of 4,896
election affidavits of incumbent MPs and MLAs found that 36% of them were
facing criminal trial in 3,045 cases. In the States, the figures vary as 62% of
MLAs in Maharashtra, 43% in Delhi, 37% in West Bengal, 36% in UP, and 34% in
Tamil Nadu. A report of the Haryana Election Watch in 2014 put the figure for
that State as 94 out of 1,351 candidates with 31 booked under serious charges.
In 2016, in TN, nine Ministers facing criminal cases were included in
Jayalalitha’s Cabinet.
Attempts so far made by
the EC to debar candidates with criminal record from contesting election have
not been successful. A verdict of the SC declared Section 8(4) of the RP Act ultra vires which allowed convicted
members to continue their membership if they had filed an appeal within three months
of conviction. Despite the requirement of an affidavit in the nomination form
seeking affirmation from the candidates in the 2014 Lok Sabha election that
they had not been charge-sheeted in criminal cases, it was found that 150 out
of 4,708 candidates all over the country had at some point of time some charge
against him like murder, rape, robbery, extortion, etc.
The satisfaction was
that the number was substantially lower than the record of 1,500 such
candidates in 1996. One of the ECs was reported to have stated at that time
that, “We could at best administer shock therapy on the criminal elements by
introducing the affidavit. But we cannot shut them out altogether unless there
is a law in this regard”.
In a drastic move,
the EC in August 1997 issued an order that no convicted person would be allowed
to contest elections even if on bail or an appeal was pending in a higher
court. It was followed by a Resolution in the Lok Sabha committing all
political parties to a pledge that they would not give tickets to persons with
criminal background or corruption charges.
In 2002, the
Representation of People’s Act was amended thrice adding three grounds for
disqualification for contesting elections. Not only conviction for any offence
under Commission of Sati (Prevention) Act, Prevention of Corruption Act, and
Terrorism Act became a disqualification for candidates but made the candidate
ineligible to contest for six years after completion of the sentence or payment
of fine imposed. All candidates were also required to furnish information
whether they had been accused or convicted of any offence under those Acts and
not wait till conviction.
Criminalisation of
politics - a term with which we are familiar since the Vohra Committee report
in 1993 - is said to be a buzz word in the US used in the media from Clinton’s
time.
In Australia, it is
openly said that laws “restricting the ability of criminals to engage in
politics” exist in every Australian jurisdiction. Crime-politics alliance has
been at work in many countries -- China, Mexico, Nigeria, Brazil, and Australia
among many others. With criminals providing finance and politics extending
protection, the partnership seems to have taken deep roots that pose a serious
threat to all democratic institutions and law and order in society. It is worst
type of patron-client relationship.
In the UK, the House
of Commons has no record of criminal conviction of MPs. Members are not obliged
to provide this information. MPs are not considered “public authorities” for
the purpose of freedom of information.
PCN (political-criminal
nexus) is the abbreviation used to study the collaboration between political
establishment and the criminal underworld which undermines the rule of law,
human rights, and economic development. Unlike other crimes, PCN is described
as representing a “symbiotic relationships between illegitimate criminal
networks and key elements in legitimate society that exploit public interests
for private gains”.
Governments cannot
eradicate this evil without the cooperation of political parties, and parties that
may be already caught in criminal network may have to struggle to extricate
themselves from its hold. Our hope lies with the Supreme Court to act and act
immediately.--- INFA
(Copyright,
India News & Feature Alliance)
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