Criminalization of Politics in India

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1. INTRODUCTION

Opinions: Does India remain an independent nation even after it won its freedom from British rule in 1947? It is still run by the individuals who are facing criminal prosecution. Do you believe that this is the direction that India will go?

India is a democratic nation with a parliamentary system of government, meaning that representatives chosen by the people rule the nation. There are elections every five years and a number of political parties are present. Every day, more people are becoming interested in and pursuing careers in politics; nevertheless, this has also led to a rise in the rate of criminal engagement.

The increasing criminalization of politics in India has been a source of concern even for the Hon’ble Supreme Court of India.

The Supreme Court is constrained by the constitutional theory and principle of separation of powers, according to Justice Rohinton Fali Nariman. Therefore, it is unable to enact legislation or regulations about this issue. Although parliaments have the authority to enact legislation, it is unclear when India’s parliament will act to reform Indian politics. Will it ever do something about it?

This article’s goal is to conduct a thorough analysis of the reasons for and effects of India’s criminalization of politics. It also covers the actions that we may do to purify Indian politics to improve the country.

Let’s examine the subject of politics being criminalized, which is becoming more and more prevalent in India. But first, let’s examine the reasons for the high number of criminals who want to become politicians in India. What is the reason for it?

2. WHY ARE CRIMINALS JOINING POLITICS IN INDIA?

In India, criminals are getting involved in politics for several reasons. First of all, crime is profitable. One approach to justify their riches from crime and strengthen their financial position is to enter the reputable field of politics.

The dearth of options in other disciplines is the second justification. Certain criminals view politics as a way to make a livelihood without violating the law since, in certain circumstances, economic liberalization and shifting labor markets have forced them out of their customary sectors.
The third reason criminals enter politics is that, compared to other politicians, they are often more driven and, as a result, more likely to fulfill political pledges like creating jobs or doing projects that would enhance the lives of citizens.

3. CONCEPT OF CRIMINALIZATION OF POLITICS

An action that converts a legal activity into an illegal one is known as criminalization. By any court ruling or legislative act, it is the conversion of an individual’s activities into a crime and the criminalization of the one who did them. It is referred to as the “criminalization of politics” when criminals participate in government politics, i.e., when they seek for office and are elected to state and federal legislatures.

Because the problem is so widespread, it has been addressed and argued for a long time. The roots of this problem may be discovered in the period after independence when the country was trying to establish democracy. In the highly competitive political scene, parties were keen to outmaneuver one another. To assist them win elections in this fiercely competitive climate, several politicians resorted to violent crime. This was the first formal step towards the criminalization of politics in India.
The impact of this ever-growing threat on our society has been so swift that basic democratic ideas like accountability, free and fair elections, fundamental rights, and the rule of law have become just pipe dreams with little practical value.
A large democratic country on the planet is India. Elections need to draw the greatest candidates in the nation and be held in a free and fair way.

The people will always form the foundation of democracy. The law must always be the embodiment of the people’s will. But the prevalence of money and muscular power, which significantly influences politics, has eroded the ability to choose individuals.
It is imperative to curtail the criminalization of politics because it is wrong for criminals to participate in the holy political process.

4. STATISTICAL ANALYSIS OF CRIMINALIZATION OF POLITICS

The ethos of our Indian democracy is slowly being undermined by the threat of making politics illegal. Though it does not have flawless representation, India claims to be the world’s largest democracy.

Abraham Lincoln laid out the definition of democracy in his Gettysburg Address on November 19, 1863. According to him, democracy is “government of the people, by the people, and for the people”. But democracy has come to mean only textual language these days. How can society’s welfare win out in such a scenario?

Based on the data shown above, there is a discernible rise in the number of offenders taking part in the electoral process throughout each election. Thirty percent of Lok Sabha MPs were opposed to criminal prosecution in 2009. Among the Lok Sabha MPs, 34% were charged with a crime in 2014. The latest Lok Sabha elections saw an exceptionally high proportion. Charges of committing major crimes were brought against 29% of Lok Sabha members, while 43% of them were charged with offenses.
It is depressing to see such poor conditions in a democratic nation. Voters are afraid to cast their ballots. They are being forced to cast their ballots for a specific party by goondas and mafias. They are promised certain benefits by political parties to forward their political agendas, but these promises are quickly forgotten when the election is done. Gongdas and mafias have always been involved in the electoral process in India, dating back to the country’s founding.

The Association for Democratic Reforms (ADR) and National Election Watch (NEW) recently conducted an analysis of the financial, criminal, and other background information in order to investigate the Union Council of Ministers’ post-cabinet enlargement on July 7, 2021. The report examined the most recent affidavits from 78 ministers, including the Prime Minister, from the 2019 Lok Sabha, the current Rajya Sabha, and Assembly elections. An overview of the recent cabinet’s criminal history is shown below:

Thirty-three (42%) of the 78 ministers had criminal charges filed against them.
Serious criminal cases including rape, murder, robbery, and other offenses have been recorded against 24 ministers (31%).
There are instances of using Section 307 of the Indian Penal Code, 1860 against four ministers.
Five preachers are facing accusations for inciting conflict within the community.
Election-related offenses have been reported against five ministers.
In addition, ADR reported in his report that there has been a 3% increase in the percentage of Union ministers who have criminal proceedings filed against them.
In 2019, 4,029 out of 9,427 cases of crimes committed by politicians contained corruption, according to the NCRB’s “Crime in India” report.
Following an examination of the 2020 Bihar assembly elections, the ADR and NEW discovered that 245 out of the 1,463 candidates had filed severe criminal charges, and 328 out of the 1,463 candidates had filed criminal cases against themselves.
The Indian Election Commission stated in a 2018 study that the nation’s democracy was increasingly being threatened by the criminalization of politics and that immediate action was needed to solve the problem.

5. CAUSES OF CRIMINALIZATION OF POLITICS

5.1. MUSCLE POWER

Today, the situation is shifting more often. The crooks are now seizing control of the situation. Politicians are observed giving impassioned speeches during election seasons, in which they declare their distaste for criminal activity and pledge to eradicate corruption nationwide. They emphasize the need to do away with the use of force in politics. However, this is seldom ever used.

Envision the individual facing criminal charges delivering a protracted and elegant speech advocating for the eradication of crime in their community during an election. To what extent is it ironic? The basic majority system sometimes referred to as the first past the post system, operates under the tenet that a candidate must receive the greatest number of votes to win.
The philosophy that underlies the use of force is the idea that should one side fail to gain acceptance in society, then violence and terror may be used to further their cause. The most destructive aspects of society emerge when there is a connection between criminals and political parties.

5.2. MONEY POWER

Aside from sheer force of personality, mafia, and dark money are major contributors to the criminalization of politics. K.C. Suri feels that in this particular setting, political elites have been using force and money to win elections from ancient times and that this practice is entirely incorrect. “Social division has been further channeled as one of the formidable factors to get through elections as a result of large individual politicians, not just political elite, having a nexus with criminals.”

One of the main causes of the rise of political criminality is money amassed via illegal activities. This sum of money turns becomes a simple means of purchasing votes and winning elections. The bulk of voters are readily bought off by the political parties. Additionally, it will serve as a haven for unchecked corruption, another threat.

5.3. CORRUPTION

One of the main reasons why politics has become illegal is corruption. Most political candidates need money, capital, and contributions to run for office. It is important to remember that disobedience to the law is directly caused by corruption. The criminalization of politics, disobedience to the law, and sin are all interconnected. Corrupt practices thrive when there is a combination of criminality of politics and disrespect of law.
Politics becomes illegal as a result of increasing corruption. Corruption has tainted nearly every facet of the political system in India.

5.4. DIVISIONS IN THE INDIAN POLITICAL SYSTEM

The cornerstone of the political system of India is the diversity that exists throughout its society. Politics becomes a platform for criminals who take advantage of this split. As the guardians of their particular caste, class, religion, and community, they cleverly depict them. In most cases, a candidate’s criminal history is not given much consideration when selecting one. Voting behaviour is typically influenced by a candidate’s caste, race, religion, community, and language roots.

5.5. NO RETIREMENT POLICY IN INDIAN POLITICS

The Indian political system’s retirement policy is the other main issue. Since the Lok Sabha lacks a retirement policy, some members never take retirement leave. The problem of family fiefdom puts aspiring politicians’ and attorneys’ careers in grave danger. The issue of the criminalization of politics is made worse by the bureaucracy’s poor turnover and high number of open cases.

6. IMPACT OF CRIMINALIZATION OF POLITICS

A nation’s ability to advance appears to be impeded when criminals are elected to the legislature. Both the efficacy of government and the efficiency with which Parliament can enact legislation are compromised. The public becomes less trusting in Parliament’s ability to function as a result.

Prominent figures’ favoritism and the culture of postponement contribute to the slow pace of criminal proceedings. The legislature, bureaucracy, and judiciary are only a few of the governmental institutions that suffer from rising levels of corruption. It supports the violence that permeates society and offers a poor example for young people.

The political bar is always being lowered. The criminalization of politics in the democracy of India is the cause. The days of politicians being selfless servants of society are long gone. These days, people with criminal histories and interests in their pursuits are drawn to it more frequently.

The nation must bear the brunt of this. There has been sufficient pressure placed on politicians’ shoulders too.

7. ROLE OF JUDICIARY IN CONTROLLING CRIMINALIZATION OF POLITICS

In an effort to halt the increasing criminalization of politics in the nation, the Honorable Supreme Court of India has taken action on occasion. In this respect, several rulings, opinions, and conclusions have been made. However, not much noteworthy has transpired despite this. The majority of us would wholeheartedly concur with the following points made by the Apex Court in its statement:

“It is certain that the threat of criminality inside the Indian political system is growing daily. Furthermore, it is indisputable that those with criminal histories or those who contribute to the criminalization of politics need to be prohibited from holding public office to preserve the integrity of the democratic system.

The Hon’ble Supreme Court’s bench of Justices Rohinton Fali Nariman and B.R. Gavai voiced their distress at the criminalization of politics in August of 2021. As noted by the Honorable Court:

Political parties are in a deep sleep and won’t come out. One of the legislative branches of government’s most urgent priorities right now is not cleaning up the dirty political stream.

In their February 2020 contempt petition, the political parties were asked by the Supreme Court to follow the ruling in Public Interest Foundation and Ors. v. Union of India and Anr. (2018). However, the different political parties did not abide by the decision’s directives. As a result of their disregard for the Honorable Supreme Court’s orders, the court declared the Bharatiya Janata Party (BJP), the United Janata Dal (Janata), the Rashtriya Janata Dal (RJD), and the Congress to be in contempt. It levied a punishment of one lakh for candidates’ failure to provide all relevant criminal history in the 2020 Bihar elections. Additionally, the National Congress Party and the Communist Party of India entirely violated the orders of the Hon’ble Supreme Court, even though they were asked to deposit five lakhs each.

The current August 2021 contempt suit was brought by Advocate Brajesh Singh, who claimed that during the 2020 Bihar assembly elections, the different political parties disregarded the court’s rulings. The Bench remarked that most political parties have not provided complete information or have not adhered to the framework that was to be adopted after considering the claims and arguments made.

The bench’s prior ruling from 2020 included the following orders and modifications, which are included in its most recent verdict:

To make information easily accessible to the general public, ECI has been instructed to develop a mobile application that includes all of the details on the applicants’ criminal histories.
To verify whether the parties are following the court’s order or not, ECI has been instructed to establish a distinct monitoring cell. It has also directed them to report any such violations to the court.
Candidates with criminal antecedents’ is a new tab that the political parties should include on their homepages so that voters may easily find out more information, as ordered by the Honorable Supreme Court.
By mandating parties to disclose facts within 48 hours after selection rather than two weeks before nomination, the court has amended its earlier ruling from February 2020.
A distinct bench at the Supreme Court may be established to oversee cases involving accused MPs and MLAs, it was also noted.

Also, two distinct instances of criminalization in Indian politics were the primary reason for the issue’s awareness.

Cases against politicians: The Hon’ble Supreme Court noted that state governments were not permitted to drop their legal actions against lawmakers without the consent of the corresponding state high courts.
Parties penalized: Nine parties were found in contempt for withholding information about the 2020 Bihar elections in its entirety. On top of that, eight of them received harsh fines.

When a person is found guilty under the Prevention of Corruption Act, of 1988, high courts were instructed by the Honorable Supreme Court in 1997 not to vacate the conviction.

An incumbent member of Parliament and a state legislator may also be barred from running for office if they are found guilty of a felony that carries a minimum two-year jail sentence, according to the ruling made by the Hon. Supreme Court in the Ramesh Dalal v. Union of India (2005) case.

Regarding K Prabhakaran v. P Jayarajan (2005), it was also mentioned that “those who break the law should not make the law.” The main objective of laws that bar someone from holding public office after being found guilty of specific crimes is to keep criminals out of politics and the house, which is a powerful arm of the government. Because they are not subject to many restrictions and are willing to engage in illegal activity to succeed in an election, those with criminal backgrounds taint the electoral process.

To stop the threat of criminalizing politics and prevent people accused of crimes from running for office, a PUBLIC INTEREST LITIGATION IN INDIA (PIL). The PIL sought to establish rules and a framework that would be followed.

Parliamentary members, members of the legislative assembly, and legislative council members were all entitled to a break under Section 8(4) of the Representation of the People Act 1955. The Hon’ble Supreme Court will entertain an appeal submitted by the convicted member within three months after the conviction. It was suggested that the member might stay a member of the relevant legislature until the court decided how to handle the application. It was ruled by the court that this clause was unlawful in Lily Thomas v. Union of India (2013). Currently, a member of the state legislature or a member of Parliament would be removed from office if found guilty of a felony specified in Section 8(1) or Section 8(2) of the Representation of People Act 1955. Furthermore, six years after being discharged, a person’s entitlement to hold a seat remains vacant. Since Parliament’s role is to create rules about disqualification rather than to gain seats for membership, Section 8(4) was ruled to be unconstitutional.

According to Article 19(1)(a) of the Indian Constitution, voters have a basic right to know about the candidates running for office, the Hon’ble Supreme Court decided in the case of People’s Union for Civil Liberties v. Union of India (2018).

The Hon’ble Supreme Court upheld its 2018 ruling in 2020. Dissuading candidates with criminal records from running for office is the primary goal. Political parties have to explain their selection of a candidate with a criminal history. The Supreme Court noted that candidates must be chosen based on their qualifications, not their likelihood of winning. The material has to be posted on the website, social media sites, and national and local publications. The electoral commission must receive the same data within 72 hours of the candidate’s name being announced. You should be prepared to face contempt proceedings if you fail to file a compliance report with the Election Commission. Unquestionably, judicial and electoral changes are urgently needed.

8. VARIOUS JUDGEMENTS AGAINST CRIMINALIZATION OF POLITICS

On the subject of the criminalization of politics, multiple Indian courts have rendered decisions.

The Public Interest Foundation v. Union of India (2019) case is among the notable ones: The Indian Supreme Court ruled in this case that political parties were required to post their candidates’ criminal histories on their websites, social media accounts, and in print media. Also, the Election Commission of India was ordered by the court to establish a system to guarantee that the public was informed about the criminal histories of candidates.
In Lily Thomas v. Union of India (2013), the Indian Supreme Court ruled that any member of state legislative assemblies or the parliament who is found guilty of a crime and given a jail sentence of two years or more would not be allowed to continue in their position. In addition, the court ruled that a legislator who had been found guilty may not run for office or serve in the legislature while the appeal was being processed.
In the 2002 case Association for Democratic Reforms v. Union of India, the Indian Supreme Court ordered the Election Commission to publish rules to make sure political parties would not grant tickets to individuals with criminal backgrounds to run in elections. Additionally, the court mandated that candidates provide a disclosure of their criminal histories in their nomination materials.
The Delhi High Court ruled in Manoj Narula v. Union of India (2014) that an individual cannot be barred from running for office just based on a criminal allegation against them. But the court also ruled that candidates with a criminal record cannot be fielded by political parties.
State of Uttar Pradesh v. Raj Narain (1975): The Indian Supreme Court ruled in this case that the public has a basic right to know the political background of the people who represent them. Election affidavits are required by the court to provide details on candidates’ assets, liabilities, educational backgrounds, and criminal histories.

These rulings from several Indian courts demonstrate that the judiciary has given the problem of making politics illegal substantial consideration. To guarantee increased openness in the political process and to bar those with criminal records from running for public office, the courts have rendered several significant decisions.

9. INTERNATIONAL JUDGEMENTS ON CRIMINALIZATION OF POLITICS

India is not the only country where political corruption is a problem. All around the world, this is a problem that is widely present. The following are a few rulings from throughout the world on political prosecution:
Brazil: During a significant corruption scandal in 2012, the Supreme Court of Brazil convicted 25 lawmakers of using their positions to purchase votes and launder money. Eight years of public office bans and hefty penalties were imposed by the court on these lawmakers.

Italy: Political corruption in Italy has a long history. In 2013, the country’s top court upheld former prime minister Silvio Berlusconi’s tax fraud conviction. In addition to serving four years in prison, Berlusconi was barred from entering public office for five years.
Pakistan: After finding Prime Minister Nawaz Sharif guilty of corruption in 2017, the Supreme Court of Pakistan permanently barred him from holding public office. Sharif also had to repay millions of dollars worth of earnings that he had obtained illegally, along with a heavy punishment.
South Africa: In 2018, the Constitutional Court of South Africa declared that former President Jacob Zuma had breached the constitution by withholding the repayment of public monies that had been utilized to refit his private home. Together with a prohibition against running for public office, Zuma was mandated to reimburse the money.
Mexico: Political corruption is a problem that has also plagued Mexico. Former Governor Javier Duarte was charged with organized crime and money laundering in 2019, and a Mexican judge issued an arrest warrant for him. During his tenure in government, Duarte was charged with embezzling millions of dollars in public monies.

These foreign court decisions demonstrate the need for governments to intervene to prevent the criminalization of politics. Economies may improve their political systems and foster accountability by making sure elected officials are held responsible for their acts and that their right to hold public office is revoked if they are found guilty of corruption.

10. INTERNATIONAL AGREEMENTS OR COVENANTS RELATED TO CRIMINALIZATION OF POLITICS

The criminality of politics is not specifically addressed by any international treaties. On the other hand, several international treaties and accords that support openness, responsibility, and responsible leadership may serve as a countervailing force against the criminalization of politics. The following list includes a few international accords and covenants about this matter:

United Nations Convention against Corruption, or UNCAC for short. This international pact attempts to fight corruption in the public and business sectors and to foster international collaboration. Bribery, money laundering, and power abuse are just a few of the many corruption-related topics that are covered by the UNCAC. Additionally, it pushes nations to create and put into action efficient policies that stop corruption and bring perpetrators to justice.

The Sustainable Development Goals (SDGs) of the United Nations: Envisioned to reduce poverty and inequality and promote sustainable development, the 17 Sustainable Development Goals (SDGs) aim to do both. Promoting inclusive and peaceful communities, ensuring that everyone has access to justice, and opposing bribery and corruption are all expressly addressed in Goal 16.

Member countries of the Organization for Economic Cooperation and Development (OECD) are required under its anti-bribery treaty to prohibit the bribery of foreign public officials and to collaborate in the investigation and prosecution of such instances. To avoid corruption in international commerce and investment, the agreement seeks to level the playing field for firms.
Global Conference on Transparency and Information Exchange for Tax Purposes: The purpose of this conference is to encourage information sharing and transparency among nations to stop tax evasion and other illegal financial activity. The forum may indirectly contribute to preventing the criminalization of politics by encouraging financial transaction transparency.

These international treaties and covenants emphasize how cooperative efforts among nations are required to advance accountability, openness, and sound governance. Countries may encourage a more just and equitable society for their inhabitants by putting in place efficient tools to stop corruption and criminalize politics.

11. THE WAY FORWARD

It is an indisputable reality that criminals need to be prohibited from running for office at any cost. They tarnish democracy’s purported essence. What if, however, the individual has just been charged? Must one be disqualified from running for office just based on an allegation? The response is negative. The criminal justice system functions in accordance with the legal principle of “innocent until proven guilty”. The right to run for office belongs to every innocent individual. Then, how should one proceed?

The Supreme Court established separate fast-track tribunals for these types of cases in 2017. The main benefit is that it will be evident whether or not that individual is eligible to run for office as the cases will be resolved as soon as possible.

Also in need of modification is the Representation of People Act of 1951. Parts 7 through 11 of this Act pertain to candidates running for office. Requirements need to be evaluated in order to be durable and flexible enough to adjust to shifting social conditions.

Numerous suggestions have also been made by committees like the Dinesh Goswami and Vohra committees. These suggestions must be considered as soon as feasible. We urgently need both judicial and electoral changes. It is crucial to remember, nevertheless, that citizens also have a responsibility to uphold the genuine spirit of democracy in addition to the state.

12. CONCLUSION

Based on the aforementioned data and analysis, it is evident that political parties have been engaging in more corrupt activities. To win elections, political parties have employed a range of tactics. Although Parliament, the Hon’ble Supreme Court, and the Indian Election Commission have all taken periodic steps to counter this menace, no significant progress has been accomplished as of yet.

Tough legislation has to be enacted, and constitutional agencies like the Indian Election Commission ought to get support. It ought to have the authority to examine political parties’ financial records. An alternate strategy would be to make political party financing subject to the Right to Information (RTI) legislation. Politicians must act quickly to solve the issue, which is a lack of political will. At the earliest opportunity, deeper, more comprehensive reforms are needed.

Our court is indeed making an effort to deal with the growing criminalization of politics by taking appropriate action. However, since the Parliament has been given the authority to decide on the law-making powers under our Constitution, the burden of proof now rests with it. India needs to progress and become a fully independent country.

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