electoral reforms towards decriminalising politics

8/10/2019 electoral reforms towards decriminalising politics

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NEED OF ELECTORAL REFORMS: TOWARDS

DECRIMINALISING POLITICS

Democracy disciplined and enlightened is the finest thing in the world. A democracy

prejudiced, ignorant, supersti tious, will land itself in chaos. - M .K. Gandhi

INTRODUCTION:

India became polluted due to the criminalisation in Indian politics and just because of this India,

an example of a largest democracy has lost the correct definition of democracy given by

Abraham LincolnGovt of the people, by the people and for the peopleand it changed into

Govt off the people buys the people and far the people.1

The criminalisation of politics means involvement of criminal elements in the governance of the

country those who make the law for their own purposes. The criminalisation is a kind of hysteria

in Indian politics which making India as a country which does not have their roots deep in the

land.

Electoral reforms are an imperative and are something that could help clean public life. One of

the most important features of a democratic polity is elections at regular intervals. Elections

constitute the signpost of democracy. These are the medium through which the attitudes, values

and beliefs of the people towards their political environment are reflected. Elections grant people

a government and the government has constitutional right to government those who elect it.

Elections are the central democratic procedure for selecting and controlling leaders. Elections

provide an opportunity to the people to express their faith in the government from time to time

and change it when the need arises. Elections symbolize the sovereignty of the people and

provide legitimacy to the authority of the government. Thus, free and fair elections are

indispensible for the success of democracy.

1Economic & Political Weekly EPW JANUARY 4, 2014 vol XlIX no 1


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Democracy:

Democracy is a fai th in the spir itual possibi li ties of not a privileged few but of every

Human being.

Sarvepalli Radhakrishnan

Democracy has not been a free gift for most of the present democratic nations including India.

India earned its independence and democracy after a long freedom struggle. The most significant

feature of a democracy is the election process. Free and fair elections are essential in a healthy

democracy. For the success of democracy, it is necessary that people maintain their allegiance

towards the democratic institutions based on rule of law. The more the elections are free and fair,

the stronger the allegiance the people will have towards democratic institutions. Contrary to this,

if the elections are not free and fair, the people will not have faith in democracy. Parliament has

made a law to ensure free and fair elections and a very comprehensive system of elections has

been developed in the country. The experiences of the last fifteen General Elections have shown

the merits and demerits of the system to the people. Minor changes have regularly been made in

the election system. However, still our electoral process is beset with many evils like use of

black money, casteism, communalism, rigging, abuse of administrative machinery,

criminalization of politics, and even capturing of booths in some areas. All these abuses lead to

eroding of faith of the people in free and fair elections.

The concept in India:

Democracy as a form of governance was the central plinth of the constitutional scheme

envisaged by the framers of the Constitution of India. The ultimate aim, as evidenced in the

Constituent Assembly debates and gleaned from their personal writings, was the empowering of

each and every Indian citizen to become a stakeholder in the political process. To this end, the

citizen was given the power to elect members of the Parliament and their respective State

Legislative Assemblies through the exercise of their vote, a system that the framers believed

would ensure that only the most worthy candidates would be elected to posts of influence and

authority. Representative government, sourcing its legitimacy from the People, who were the

ultimate sovereign, was thus the kernel of the democratic system envisaged by the Constitution.


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Over time, this has been held to be a part of the basic structure of the Constitution, immune to

amendment, with the Supreme Court of India declaring,

It is beyond the pale of reasonablecontroversy that if there be any unamendable features of

the Constitu tion on the score that they form a part of the basic structure of Constitution, it i s

that I ndia is a Sovereign Democratic Republic.2

The democracy is a govt of the people, by the people and for the people. India is also following

this democratic setup of govt. The survival of Indian democracy is necessary for the interest of

people which can be secure by free and fair election process. The election process is a method to

ascertain the representation of people in the govt. The will of the people comes through the

representation by casting their votes to constitute and elect the body for their governance. The

will of the people is supreme for democratic setup of the country. If the will of the people is

polluted, good governance of the country is not possible. In the present scenario the image of

Indian democracy is diminishing due to the crime, criminals and criminalisation in Indian

politics. The definition of democracy has been totally changing into the government off the

people, buys the people and far the people.

Election process of MPs and MLAs in India:

The MPs of Lok Sabha aredirectly electedby the Indian public and the MPs of Rajya Sabha are

elected by the members of the State Legislative Assemblies, in accordance with proportional

representation. The Parliament is composed of 790 MPs, who serve the largest democratic

electorate in the world.3

Members of The Rajya sabha:

The representatives of states are elected by the members of the legislative assemblies inaccordance with the system of proportional representation by means of single transferable vote.

Each member is elected for a term of six years. Its members are indirectly elected by members of

legislative bodies of the States.

2Indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664. )

3J.N.Pandey; the constitutional law of india.
http://en.wikipedia.org/wiki/Direct_electionhttp://en.wikipedia.org/wiki/Vidhan_Sabhahttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Vidhan_Sabhahttp://en.wikipedia.org/wiki/Direct_election


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The Rajya Sabha can have a maximum of 250 members in all. Elections to it are scheduled and

the chamber cannot be dissolved. Each member has a term of 6 years and elections are held for

one-third of the seats after every 2 years. 238 members are to be elected from States and Union

Territories and 12 are to be nominated by The President of India and shall consist of persons

having special knowledge or practical experience in respect of such matters as the following,

namely literature, science, art and social service. The minimum age for a person to become a

member of Rajya Sabha is 30 years.4

Representatives of Union Territories are indirectly elected by members of anelectoral college for

that territory in accordance with system ofproportional representation.

Members of The Lok Sabha:

The Lok Sabha is also known as the "House of the People" or the lower house and has members

from 543 parliamentary constituencies. All of its members are directly elected by citizens of

India on the basis of universal adult franchise, except two who are appointed by the President of

India.Every citizen ofIndia who is over 18 years of age, irrespective of gender, caste, religion or

race, who is otherwise not disqualified, is eligible to vote for the lok sabha.

The Constitution provides that the maximum strength of the House be 552 members. It has a

term of five years. To be eligible for membership in the Lok Sabha, a person must be a citizen of

India and must be 25 years of age or older, mentally sound, should not be bankrupt and should

not be criminally convicted. At present, the strength of the house is 140 members. The total

elective membership is distributed among the States in such a way that the ratio between the

number of seats allotted to each State and the population of the State is, so far as practicable, the

same for all States.5

Up to 530 members represent of the territorial constituencies in States, up to 20 members

represent the Union Territories and no more than two members from Anglo-Indian community

4J.n.pandey , constitutional law of India

5parliamentofindia.nic.in. Retrieved 19 August 2011)
http://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/Electoral_collegehttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Lower_househttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Anglo-Indianhttp://en.wikipedia.org/wiki/Anglo-Indianhttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/Lower_househttp://en.wikipedia.org/wiki/Proportional_representationhttp://en.wikipedia.org/wiki/Electoral_collegehttp://en.wikipedia.org/wiki/President_of_India


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can be nominated by the President of India if he or she feels that the community is not

adequately represented. House seats are apportioned among the states by population.

Members of legislative assembly:

According to the Constitution, a Legislature Assembly cannot have more than 500 members and

less than 60 members. The members are elected directly by the people. Some seats in the

Legislative Assembly are reserved for Scheduled Castes and Scheduled Tribes. The Governor

can nominate one member from the Anglo-Indian community if no member is elected from that

Community to the House.

The members of the Legislative Assembly are elected for a term of five years. But the Governor

can dissolve the house before the expiry of five years and can call for fresh elections. To be amember of the Legislative Assembly one must be a citizen of India and should have attained 25

years of age.6He cannot be a member of both houses of the State legislature or a member of the

Union Parliament at the same time. The meetings of the Assembly are presided over by the

Speaker who is elected from among the members of the Assembly. In his absence, the Deputy

Speaker conducts its meetings.

Disqualifications:

As per the constitutional provisions-

A person is disqualified for being chosen and for continuing as a member of parliament if he

suffers from following disqualifications:7

(a) if he holds any office of profit under central or the state govt other than an office declared

by parliament by law not to disqualify its holder.

(b)If he is of unsound mind and a competent court has declared him to be so.

(c) If he is an undischarged insolvent.

6http://www.kkhsou.in/main/polscience/government_state.html.7Article 102 of Indian constitution
http://en.wikipedia.org/wiki/President_of_Indiahttp://www.kkhsou.in/main/polscience/government_state.htmlhttp://www.kkhsou.in/main/polscience/government_state.htmlhttp://www.kkhsou.in/main/polscience/government_state.htmlhttp://en.wikipedia.org/wiki/President_of_India


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(d)If he is not the citizen of india, or has voluntarily acquired citizenship of a foreign state,

or under any acknowledgement of allegiance or adherence of a foreign state.

(e) If he so disqualified under any law made by parliament.

For this purpose parliament has described necessary disqualifications in the representation of

peoples act, 1951.

Disqualifications under representation of people act, 1951-

1. Corrupt practice at an election,

2. Conviction for an offence resulting in imprisonment for two or more years,

3. Failure to lodge an account for election expenses,

4. Having an interest and share in the contract for supply of goods are execution of any

work or performance of a service to the govt,

5. Being a director or managing agent or holding an office of profit in a corporation in

which the govt has 25% share,

6. Dismissal from govt service for corruption or disloyalty to the state.8

Disqualifications on the ground of defection-

The 52nd

amendment has amended articles 101, 102, 190 and 191 and added a new schedule, the

tenth schedule, to the constitution which specifies the disqualifications on the ground of

defection.

Election commission: and its role:

The Election Commission of Indiais an autonomous,constitutionally established federal

authority responsible for administering all the electoral processes in the Republic of India. Underthe supervision of the commission, free and fair elections have been held in India at regular

intervals as per the principles enshrined in the Constitution. The Election Commission has the

8 Sec 8 to 11 of representation of people act, 1951
http://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_India


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power of superintendence, direction and control of all elections to theParliament of India and

thestate legislatures and of elections to the office of thePresident of India and theVice-

President of India.

The Chief Election Commissioner can beremoved from his office by Parliament with two-thirds

majority inLok Sabha andRajya Sabha on the grounds of proven misbehaviour or incapacity.

Other Election Commissioners can be removed by the President on the recommendation of the

Chief Election Commissioner. The Chief Election Commissioner and the two Election

Commissioners draw salaries and allowances at par with those of the Judges of the Supreme

Court of India as per the Chief Election Commissioner and other Election Commissioners

(Conditions of Service) Rules, 1992.

Constitutional provisions:

Under Article 324(1)of the Constitution of India, the Election Commission of India, inter alia, is

vested with the power of superintendence, direction and control of conducting the elections to

the offices of the President and Vice-President of India.9Detailed provisions are made under the

Representation of people act, 1951 and the rules made there under.

At present, the Election Commission of India is a three-member body, with one Chief Election

Commissioner and two Election Commissioners.

Guardian of Free and Fair Election:

One of the most important features of the democratic polity is elections at regular intervals.

Democracy is the Government of the people, By the people, And for the people". Holding

periodic free & fair elections are essentials of democratic system. It is part of basic structure of

the Constitution which has been held in T. N. Sheshan V/s Union of India,10

The Commission

has taken many efforts for the success of elections and thereby democracy.

9J.n.pandey, constitutional law of India

10AIR 1995 SC 852
http://en.wikipedia.org/wiki/Parliament_of_Indiahttp://en.wikipedia.org/wiki/State_legislaturehttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/Vice-President_of_Indiahttp://en.wikipedia.org/wiki/Vice-President_of_Indiahttp://en.wikipedia.org/wiki/Impeachmenthttp://en.wikipedia.org/wiki/Lok_Sabhahttp://en.wikipedia.org/wiki/Rajya_Sabhahttp://en.wikipedia.org/wiki/Supreme_Court_of_Indiahttp://en.wikipedia.org/wiki/Supreme_Court_of_Indiahttp://en.wikipedia.org/wiki/Supreme_Court_of_Indiahttp://en.wikipedia.org/wiki/Supreme_Court_of_Indiahttp://en.wikipedia.org/wiki/Rajya_Sabhahttp://en.wikipedia.org/wiki/Lok_Sabhahttp://en.wikipedia.org/wiki/Impeachmenthttp://en.wikipedia.org/wiki/Vice-President_of_Indiahttp://en.wikipedia.org/wiki/Vice-President_of_Indiahttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/State_legislaturehttp://en.wikipedia.org/wiki/Parliament_of_India


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Problem of the research project:

In order to restore the faith of people in democracy, there is an urgent need of electoral

reforms. Various electoral reforms have been introduced in our electoral system in the

past. And many other numerous electoral reforms have been introduced by Election

Commission from time to time but still there is lot to be achieved.

No electoral system can function properly unless the underlying political system in which

it operates is appropriate, just as a healthy plant cannot grow and bear good fruit unless

the soil is properly prepared, the fruit in this case being governance.

Criminalization of politics in India is today a sad reality.

Our electoral process is beset with many evils like use of black money, casteism,

communalism, rigging, abuse of administrative machinery, criminalization of

politics, and even capturing of boothsin some areas. All these abuses lead to eroding of

faith of the people in free and fair elections.

As democracy has been held a basic structure of Indian constitution the criminalisation of

politics affecting it in course of demolition.

Growth in Assets of Elected Representatives.

Negative effects on democracy: The increasing presence of persons with criminal

backgrounds has several negative effects on the quality of democracy in the country.

First, enormous amounts of illegal money are pumped into the electoral process due to

extensive links with the criminal underworld. Along with the money, candidates withcriminal backgrounds employ illegal tactics such as voter intimidation. Together, this

distorts electoral outcomes and consequently compromises the very basis of our

democracy.


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The laws regarding elections and what the electoral reforms have been done till the date

are adequate but still the issue is unresolved means there is the problem of non

implementation of the laws and rules regarding this.

At this time this issue of criminalization is a topic of debate. How we can save our

democratic setup from this hysteria.Our constitution and representation of people act

are silent on this issue.

Voters are helpless and even intelligentsia have lost faith in system.

The poor and working class can be terrorized or bought.

Corruption is rampant in all works of life.

Objective of the research project:

1. The main objective is to decriminali ze polit ics therefore to take steps in furtherance of

that.

2. To get the solu tions and suggest themto law makers for removing the impurity which is

there in Indian politics in form of crime.

3. To study and make analysis over the problem of cr iminalization in various political

parties.

4.

To suggest for getting the democratic set up of I ndia back.

5. To eradicate the evils like black money, booth capturing, scams, casteism,

communalismetc from the politics.


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6. To ensure inner party democracyin political parties.

7. Another objective of electoral reforms is the distil lation of General Wil l.

Hypothesis:

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 cant be shifted on the state institutions alone. The

citizens have an equal part to play in the healthy functioning of the democracy. Hence, there is

no doubt that electoral reforms are the need of the hour in order to attain sustainable democratic

India. Electoral system should be able to attract the best talent in the country. Elections should

not be seen as mere rituals but the pathways of democracy.

Supreme Court has also held that free and fair elections are a part of the basic structure of

theConstitution. There is an urgent need to break the criminal-political nexus. Unless some

decisive action is taken soon, the public will lose all faith in politics, politicians and democracy

itself. This will do irreparable damage to our republic.

Concept and variables:

The criminalisation of politics means involvement of criminal elements in the governance

of the country those who make the law for their own purposes. The criminalisation is a

kind of hysteria in Indian politics which making India as a country which does not have

their roots deep in the land.

Democracy:

Democracy is a faith in the spiritual possibilities of not a privileged few but of every

Human being.

Govt of the people, by the people and far the people
http://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htm


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Free and fair election:

Inherent in the model of representative government based on popular sovereignty is the

commitment to hold regular free and fair elections. The importance of free and fair

elections stems from two factorsinstrumentally, its central role in selecting the persons

who will govern the people, and intrinsically, as being a legitimate expression of popular

will. Stressing the importance of free and fair elections in a democratic polity.

The Supreme Court in Lily Thomas vs. Union of India11held Section 8(4) as

unconstitutional and void. Hence, now if a sitting Member of Parliament or state

legislature is convicted and sentenced to not less than 2 years of imprisonment, he will

get immediately disqualified from being member of house. This case talks about free and

fair election should be conducted. This is a crucial judgment and will go a long way in

cleaning our political system.

Research design:

The research design may be:

Doctrinal method of research

Non- doctrinal method of research

And the research project deals with doctr inal research.

Sources of data:

Primary sources:

The constitution of India, 1950 The representation of people act, 1951

Judicial decisions.

11(2013) 7 SCC 653 ) 2013


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Secondary sources:

J. N. Pandey; the constitutional law of India

M. P. Jain; the constitutional law of India

O.P. Tiwari; The election law Some articles over electoral reforms

As:Election Commission of India's Model Code of Conduct

Chapterisation:

The research project contains following chapters namely;

Chapter 1. Introduction

Democracy: the concept in India

Election process of MPs and MLAs in India

Election commission and its role

Chapter 2. Concept of f ree and fair election

Free and fair election: a myth

Chapter 3. Crime, criminals and criminali zation: a hysteri a in I ndian politi cs

Nexus between criminals and politicians

Chapter 4. Electoral reforms

But the criminalization of politics- issue yet unresolved

Chapter 5. Analysis of problem and data available

Chapter 6. Election commissions measures and recomendations

Chapter 7. Supreme courts measures : steps taken by judiciary in furtherance of

decriminalizing politics.

Contribution of study:

The study contributes in a manner to make the people in the society aware about the problem

arising because of too much criminalisation is there in politics and its adverse impact on the
http://en.wikipedia.org/wiki/Election_Commission_of_India%27s_Model_Code_of_Conducthttp://en.wikipedia.org/wiki/Election_Commission_of_India%27s_Model_Code_of_Conducthttp://en.wikipedia.org/wiki/Election_Commission_of_India%27s_Model_Code_of_Conducthttp://en.wikipedia.org/wiki/Election_Commission_of_India%27s_Model_Code_of_Conduct


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constitutional rights of citizens of India and also provides solutions in terms of electoral reforms

towards decriminalising Indian politics.

Limitation:

The research is done in prospect of India only.

CONCEPT OF FREE AND FAIR ELECTION: IN CONTEXT OF INDIAN

CONSTITUTION

If the people who are elected are capable and men of character and integrity, then they wouldbe able to make the best even of a defective Constitution. If they are lacking in these, the

Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It

acquires life because of the men who control it and operate it, and India needs today nothing

more than a set of honest men who will have the interest of the country before themIt requires

men of strong character, men of vision, men who will not sacrifice the interests of the country at

large for the sake of smaller groups and areasWe can only hope that the country will throw up

such men in abundance.

- Dr Rajendra Prasad President, Constituent Assembly of India,

26th November, 1949 before putting the motion for passing of the Constitution on the floor

Democracy as a form of governance was the central plinth of the constitutional scheme

envisaged by the framers of the Constitution of India. The ultimate aim, as evidenced in the

Constituent Assembly debates and gleaned from their personal writings, was the empowering of

each and every Indian citizen to become a stakeholder in the political process. To this end, the

citizen was given the power to elect members of the Parliament and their respective State

Legislative Assemblies through the exercise of their vote, a system that the framers believed

would ensure that only the most worthy candidates would be elected to posts of influence and

authority. Representative government, sourcing its legitimacy from the People, who were the

ultimate sovereign, was thus the kernel of the democratic system envisaged by the Constitution.


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Over time, this has been held to be a part of the basic structure of the Constitution, immune to

amendment, with the Supreme Court of India declaring,

It is beyond the pale of reasonable controversy that if there be

any unamendable features of the Constitution on the score that they form a part of the basic

structure of Constitution, it is that India is a Sovereign Democratic Republic.12

Dr. Rajendra Prasad, in his concluding address to the Constituent Assembly categorically said,

A law giver requires intellectual equipment but even more than that capacity to take a balanced

view of things to act independently and above all to be true to those fundamental things of life

in one wordto have character.13

Mohinder Singh Gil l v. Chief Election Commissioner14

In this case Supreme Court held-

Democracy is government by the people. It is a continual participative operation, not a

cataclysmic periodic exercise. The little man, in his multitude, marking his vote at the poll does a

social audit of his Parliament plus political choice of this proxy. Although the full flower of

participative Government rarely blossoms, the minimum credential of popular government is

appeal to the people after every term for a renewal of confidence. So we have adult franchise

and general elections as constitutional compulsions It needs little argument to hold that the

heart of the Parliamentary system is free and fair elections periodically held, based on adult

franchise, although social and economic democracy may demand much more.

The Supreme Court held as such in-

K Prabhakaran v. P Jayarajan15

Those who break the law should not make the law. Generally speaking the purpose sought to be

achieved by enacting disqualification on conviction for certain offences is to prevent persons

12indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664

13Vol. XI, C.A.D. (November 26th, 1949)14(1978) 1 SCC 405, 424 at para 23.15(2005) 1 SCC 754, 780 para 54.


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with criminal background from entering into politics and the house a powerful wing of

governance. Persons with criminal background do pollute the process of election as they do not

have many a holds barred (sic) and have no reservation from indulging into criminality to win

success at an election.

Free and fair election: A myth in India:

Art 324 to 329 of Indian constitution talks about election commission as well as free and fair

election in India. But as per many problems arising nowadays and remaining unresolved for a

long time it can be said free and fair election now just stays within the provisions not in actual.

As we have looked upon many reports and surveys and illustrating cases there is criminalisation

in huge amount in politics. The elections are not being held as per the regulations passed by

election commission or the laws which are there. There are so many problems like booth

capturing, use of black money in elections and earning from elections, some heinous crimes also

being committed during the election. In so many cases honble supreme court made very clear

with all these principles regarding free and fair election but still being violated.

Other than criminalisation in politics some more problems became challenge to free and fair

election in India as:16

Candidates and parties with a lot of money may not be sure of their victory

but enjoy a great and unfair advantage over smaller parties and independents.

1. In some parts of the country, candidates with criminal connections have been able to push

others but of the electoral race and to secure a ticket from major parties.

2. Some families tend to donate political parties; tickets are contributed to relatives from

these families.

3. Very often elections offer little choice to ordinary citizens, for both the major parties are

quite similar to each other both in policies and practice.

4. Smaller parties and independent candidates suffer a huge disadvantage compared to

bigger parties.

16 http://gradestack.com/CBSE-Class-9th/Challenges-to-Free-and-Fair-Electio/14931-2957-3186-study-wtw


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Thus in what basis we can say there is free and fair election in India and no need of electoral

reform as well. As what is going on for a time fr ee and fair election is myth for I ndia.

CRIME, CRIMINALS AND CRIMINALISATION: HYSTERIA IN INDIAN

POLITICS

It implies that the criminals entering the election fray 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 poli ticians. 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. Further, the

criminal justice system has inbuilt delays. It takes on an average 15 years for a criminal case to

be finally disposed off by the courts. Under the golden rule of criminal law on which the entire

criminal justice system is based, the accused is presumed to be innocent till he is proved to be

guilty. Therefore, after the accused is convicted and sentenced by trial court, by going on appeal

to higher court, his conviction and sentence are suspended by higher court till it disposes off the

appeal. Thus, the convicted person becomes innocent once more in eyes of law and is not

prohibited from contesting elections. Moreover, the rate of conviction in the country has been

going down which means more and more criminals may go unpunished as their guilt is not

proved beyond reasonable doubt in court of law. Thus, the known criminals are not legally

prohibited from contesting elections.17

The elections to Lok Sabha and state legislatures are based on the F ir st 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, in a multi-cornered contest, a candidate with as low as 25-30% of valid votes polled may

get elected which criminals does not find difficult to get because of the use of their money and

muscle power. Thus, FPTP system doesnt discourage criminals from contesting elections. The

17Dr.B.L.Fadia,IndianGovernmentandPolitics(2013)


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Parliament also so far has failed to enact adequate electoral reforms to decriminalize politics.

The political parties are also guilty of not following value-based politics which combined with

declining value system in society has also contributed to criminalization of politics. The

criminalization of politics has very adverse consequences on the society as well as on the nation.

It is very well understood that if there is criminalisation in such a way there would defenetly be

the affecting consequencesnot good for Indian democracy.18

Consequences:

The major impact is that the law-breakers get elected as law-makers. According to Election

Commission, about 40% of members elected to 15th Lok Sabha are facing criminal charges in

court of law. This makes the Parliament less efficient in enacting necessary laws for the effective

administration of country. The Parliament loses its credibility and the Council of Ministers loses

its legitimacy to administer the country. Political patronage and a culture of adjournment

collude to prevent speedy trials against elected representatives. Public prosecution is often

ineffective and coloured by vested interests. All in all, the system is wired to push for a

favourable outcome for an accused elected representative. It also leads to increased circulation of

unaccounted money or black money during and after elections, diluting the probity in public life.

The increased levels of corruption in public life weakens the state institutions including the

bureaucracy, the executive, the legislature and the judiciary. Further, it introduces a culture of

violence in the society and sets a bad precedence for the youth to follow.19

ELECTORAL REFORMS

In order to restore the faith of people in democracy, there is an urgent need of electoral reforms.

Various electoral reforms have been introduced in our electoral system in the past. Parliament

through a constituti onal amendment i n 1989 reduced the minimum voting age fr om 21 to 18.

18http://policyblog.oxfordindiasociety.org.uk/2013/04/29/proposals-for-decriminalising-politics-in-india19TheHindu,September27,2013
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The Representation of the Peoples Act, 1951, was amended to facilitate use of Electronic

Voting Machines(EVMs).20

A person who is convicted for the off ences under the Preventi on

of I nsults to National Honour Act 1971 is disqual if ied to contest in the elections to the

Parliament and state legislature for 6 years. There is prohibition on entering into the

neighbourhood of a polling station with any kind of arms.Under a 2003 provision, the Election

Commission should allocate equitable sharing of time on the cable television network and other

electronic media during elections to display or propagate any matter or to address public.

Candidates are now required to furnish their criminal antecedents, assets, educational

quali fi cations, etc. on their nomination papers. The above mentioned as well as other numerous

electoral reforms have been introduced by Election Commission from time to time but still there

is lot to be achieved. The ship of democracy in India is adrift in choppy waters. Grave risks lurk

all around. Unless it is steered with great care and in the appropriate direction, it just might hit a

rock of an iceberg and disintegrate of sink. Nothing is impossible in the volatile world in which

not everyone is happy to see India prosper. However, no electoral system can function properly

unless the underlying political system in which it operates is appropriate, just as a healthy plant

cannot grow and bear good fruit unless the soil is properly preparedthe fruit in this case being

governance. Therefore, the political will is must to introduce the much required core electoral

reform in a sustainable manner.

But the criminalisation of politics: Issue yet unresolved

After more than sixty years of independence we are still unable to achieve the ideal state of

governance and politics has become much dirtier than before.

Still the menace of criminalisation of politics is threatening the Indian political system and has

become the bone of contention. However, to say that attention has not been paid over this issue

would be wrong since this issue is being raised by election commission from 1998 onwards.

Disqualification for criminal offenses is provided for in section 8 of the representation act, 1951

as per which a person is disqualified from contesting election only on conviction by the court of

law. There has been several instances of persons charged with serious and heinous crimes like

murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected. This

20Art 61-A, Ins. by Act 1 of 1989, s. 11 (w.e.f. 15-3-1989)


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leads to a very undesirable and embarrassing situation of law breakers becoming law makers and

moving around under police protection. The fact that 20% of present lok Sabha members have

criminal charges on them itself proves are impotency to counter this evil. The contrary view to

disqualify the accused politicians is that a person is presumed innocent unless proved guilty and

the issue is still disputed with the debate going on. When we idealize a state of corruption free

politics and a crime free state, the first step in this regard must be decriminalisation of politics

which has been an issue since past many years and yet unresolved.21

ANALYSIS OF PROBLEM AND DATA AVAILABLE

Among the much needed core reforms in the electoral system, decriminalization of politics

deserves a central position. Criminalization of politics in India is today a sad reality. According

to the Association for Democratic Reforms (ADR), 76 of the 543 members elected to the Lok

Sabha in 2009 had been charged with serious criminal charges such as murder, rape and dacoity.

Under the present setup, getting elected to the legislature becomes a convenient shield to delay

and extend the legal processes and escape being convicted. The Second Administrative Reforms

Commission (ARC) noted that the opportunity to influence crime investigations and to convert

the policemen from being potential adversaries to allies is the irresistible magnet drawing

criminals to politics. Criminalization of politics does more than just subvert ethics in

governance, it hits at the root of public engagement with the system. Not only is this trend highly

demoralizing for the general public, it reduces their trust in the system and forces them into

apathy and disillusionment.

Overview of Situation from 2004 to Date:

The analysis that follows is based on the sworn affidavits submitted by candidates to the ECI

prior to contesting elections. This was the outcome of two Supreme Court judgments in 2002 and

2003 based on a PIL filed by ADR. The latter petition was also filed by Peoples Union for Civil

Liberties (PUCL), Lok Satta and several other organizations. The Supreme Court mandated

21National seminar on electoral reforms in india in contemporary constitutional perspective lucknow university,

22 april 2012, p. 62


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disclosure of cases where charges had been framed22

against a candidate and where conviction

would lead to a sentence of two years or more. To prevent malicious or motivated cases by

rivals, the Court limited this disclosure only to those cases where charges were framed at least

six months prior to the date of elections. The ECI now makes affidavits of candidates available

on their websites. ADR conducts National Election Watch for every national and assembly

election in partnership with a nationwide network of organizations and in the process collected

this data. This database which can be found at www.adrindia.org andwww.myneta.info was used

to analyze the issues of criminalization, money in elections, winnability, and role of gender in

elections.23

Some data is available in form of tableshowing Summary of serious criminal charges on

Politicians(Of All State Assembly, Lok Sabha, Rajya Sabha elections from 2004 to

September 2013)24

Serious cases: Instances of IPC sections on Candidates and Winners

No of IPC

sections againstCandidates

IPC section per

candidate

No of IPC

sections againstWinners

IPC section per

winner

Murder 1229 0.02 335 0.04

Other

murderrelated

3128 0.05 846 0.10

Rape 68 0.00 17 0.00

Other crimes

against women

455 0.01 136 0.02

Robbery and

dacoity

1004 0.02 276 0.03

Kidnapping 976 0.02 282 0.03

22(A charge is framed by a court, typically a judicial magistrate first class (JMFC), on the basis of a charge sheet

filed by the police after investigation. Thus an FIR against someone would not constitute a case as described by the

Supreme Court)23Economic & Political Weekly JANUARY 4, 2014 vol XLIX no 1 24Economic & Political Weekly JANUARY 4, 2014 vol XLIX no 1
http://www.myneta.info/http://www.myneta.info/


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Cheating,

forgery,counterfeiting

3039 0.05 909 0.10

Governmentseal

counterfeiting

226 0.00 76 0.01

Electoral

frauds

226 0.00 303 0.03

Sub total 10351 0.16 3180 0.36

All otherserious charges

3633 0.06 1644 0.19

Total 13984 0.22 4824 0.55

The data show that there was one serious charge for approximately every 5 candidates (0.22),

and one for every 2 elected representatives (0.55).

If we look upon 2013 data found, A total of 4,807 sitting MPs and MLAs as of August

2013 were analyzed, of whom 1,460 (30%) sitting MPs and MLAs have declared

criminal cases against themselves and 688 (14%) have serious criminal cases. If anything,

the situation has become slightly worsened since the data has become publicly available

and analyzed since 2004 when the comparable figures for winners with a criminal charge

were 28.4% and winners with serious criminal charges were 13.5%.

ELECTION COMMISSIONS MEASURES AND RECOMMENDATION

Election Commission of India has consistently undertaken certain electoral reforms which it

could take on its own as well as at the direction of Supreme Court. In 1997, Election

Commission directed all the Returning Officers (ROs) to reject the nomination papers of any

candidate who stands convicted on the day of filing the nomination papers even if his sentence is

suspended. Election Commission has also made the following recommendations to the Union

Government to be made into law in the form of electoral reforms for the decriminalisation of

politics.


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If a person is accused of a serious crime (that is, where the law prescribes a punishment of not

less than 5 years for the alleged crime) and if a court of law has framed criminal charges against

the accused, then it shall be regarded as a reasonable ground for the disqualification of accused

from contesting elections. The Election Commission is of the opinion that framing the criminal

charges by a court means that the court prima facie believes that the accused might have been

involved in the alleged crime.

If a person is found guilty by a Commission of Inquiry then he shall be disqualified from

contesting elections.

The FPTP electoral system shall be replaced by the 2-ballot system under which a candidate is

declared elected from a territorial constituency on the basis of majority principle. In a multi-

cornered contest if no candidate attains more than 50% of valid votes polled, then the 2

candidates who obtained the largest number of valid votes polled alone shall be allowed to

contest the next round of elections. This system would make it difficult for a criminal to get

elected.

Along with 2-ballot system, the negative vote shall also be introduced. This step has already

been taken with the help of above mentioned Supreme Court judgement. Some other measures

which could also be pondered over for decriminalization of politics include:-

Right to recall - It confers the power on the registered voters in a constituency to recall

their elected representatives from the house on the ground of non-performance. It could

empower the people at grass root level. The elected representative could be made truly

accountable to the people. In such scenario, political parties will be forced to nominate

eligible and desirable candidates to contest elections because of the fear of removal of

elected representative. However, for such system to work high level of political maturity

is required on the part of voters.

State funding of elections - It means government extending financial assistance to the

political parties to contest elections in part or in full, in kind or in cash. The objective

could be to control or eliminate the outside pressure over government policies and

functioning by vested interests by funding political parties and candidates during


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elections. It could help in controlling the flow of unaccounted money and muscle power

of criminals during elections and corruption in public life.25

SUPREME COURTS MEASURES:

STEPS TAKEN BY JUDICIARY IN FURTHERANCE OF DECRIMINALISING

POLITICS:

Several measures have been undertaken and umpteen measures further needs to be taken to

ensure decriminalization of politics. Judiciary has time and again endeavoured to decriminalize

the politics. The Supreme Court in Union of I ndia vs. Association for Democratic Reforms

200226held that the voters enjoy right to make informed choices during elections and hence

directed Election Commission of India to make it mandatory for contesting candidates to declare

their assets and liabilities, that of their spouses and dependent children, any criminal conviction

in the court of law, any criminal case pending and the educational qualifications at the time of

filing the nomination papers.

In Ramesh Dalal vs. Union of I ndia200527

the Supreme Court held that a sitting Member of

Parliament (MP) or Member of StateLegislature (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. In 1997, the Supreme Court directed theHigh Courts to notsuspend the conviction of a person if he is convicted under The Prevention of Corruption Act

1988. The Parliament introduced Section 33-B in The Representation of Peoples Act 1951 under

which a person had to declare his assets and liabilities only before the presiding officer of the

house within 90 days after having become member of the house. However, Supreme Court struck

down Section 33-B as unconstitutional and void on the ground that it violated the Fundamental

Rights of citizens to make informed choice.

Recently, Supreme Court has come out with certain judgments to cleanse the political system offthe criminals. Section 8(1), 8(2), and 8(3) of the RPA, 1951 provide grounds of disqualification

25.( Association for Democratic Reforms (ADR) and National Election Watch (NEW) Recommendations for

ElectoralReforms(April,2011)26Union of India v Association for Democratic Reforms, Appeal 7178 of 2001 with Writ Petition (C) NO 294 OF

2001; 2 May 2002; Appeal from: CWP 7257 of 1999 (High Court, Delhi)271988 AIR 775, 1988 SCR(2) 1011)
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for any person who is convicted and given varying range of imprisonment, for a period of 6 years

from the date of his release from prison. Section 8(4) states that if a sitting member of Parliament

or state legislature is convicted and sentenced to not less than 2 years of imprisonment shall be

disqualified from being member of house. However, if the member goes on appeal against his

conviction within 3 months, then he shall not be subject to disqualification.

The Supreme Court in Lily Thomas vs. Union of India 201328 held Section 8(4) as

unconstitutional and void. Hence, now if a sitting member of Parliament or state legislature is

convicted and sentenced to not less than 2 years of imprisonment, he will get immediately

disqualified from being member of house. This is a crucial judgment and will go

a long way in cleaning our political system.

In another recent judgment, Supreme Court held that a voter could exercise the option of

negative voting and reject all candidates as unworthy of being elected. The voter could press the

None of the above (NOTA) button in the electronic voting machine (EVM). The court directed

the Election Commission to provide the NOTA button in the EVM. Writing the judgment, the

CJI said: Giving right to a voter not to vote for any candidate while protecting his right of

secrecy is extremely important in a democracy. Such an option gives the voter the right to

express his disapproval of the kind of candidates being put up by the parties. Gradually, there

will be a systemic change and the parties will be forced to accept the will of the people and field

candidates who are known for their integrity.29

The Bench said the NOTA option will

accelerate effective political participation in the present state of the democratic system and the

voters will in fact be empowered. The right to cast a negative vote, at a time when

electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of

its objectives, namely, wide participation of people.

Thus, supreme court of India has taken various steps and did allot of efforts to decriminalise

politics.

28Writ Petition (civil) 490 of 2005, Lily Thomas vs Union of India; July 10, 201329Writ Petition (civil) no 161 of 2004,PUCL vs Union of India, 23 September 2013


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CONCLUSION

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 cant be shifted on the state institutions alone. The

citizens have an equal part to play in the healthy functioning of the democracy. Hence, there is

no doubt that electoral reforms are the need of the hour in order to attain sustainable

democratic India. The objective of electoral reforms is the distillation of General Will. There

must be no place for the criminals in the sacred electoral process of obtaining General Will.

Electoral system should be able to attract the best talent in the country. Elections should not be

seen as mere rituals but the pathways of democracy. Honesty shouldnt be a disincentive but

instead a reward in the electoral system. For a true decriminalization of politics, the instant needis to abolish the patronage to criminals which is often given by politicians and political parties. A

strong political will is required on the part of government to decriminalize the entire political

system by taking stringent measures as well as by enactment of required legislations. Supreme

Court has also held that a free and fair election is a part of the basic structure of theConstitution.

There is an urgent need to break the criminal-political nexus. Unless some decisive action is

taken soon, the public will lose all faith in politics, politicians and democracy itself. This will do

irreparable damage to our republic.

SUGGESTION

After reviewing all the data relating to the problem of criminalization in political parties

following suggestion can be given:

First the citizens of India have to be aware about the right to information and their

constitutional rights as well. They must know about the candidates background who is

going to stand in elections.
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The person against whom the charge sheet has been submitted for the offense punishable

with more than seven years should not be permitted to contest the election without the

permission of high court.

High penalty must be imposed upon the political parties, who give ticket to the criminal

persons to contest the election.

There should be like the persons who are interested to contest the election must disclose

their assets and that must be examined before filling the nomination paper.

Section 125A of the Representation of the People Act, 1951 should be amended by

substituting the words may extend to six months, or with fine, or with both with the

words shall not be less than two years, and shall also be liable to fine.30

And all other steps which are necessary and required or may remove or diminish this

problem of criminalization to some extent should be taken and implemented.

30govt of India, recommendations by law commission of india, electoral disqualifications, report no.244, feb 2014,

the whole report available on http://www.lawcommissionofindia.nic.in
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BIBLIOGRAPHY

Books:

1.

J. N. Pandey, Constitutional Law of India, , 47thEdition , Central Law Agency

2. O.P.Tiwari, Election law

3. M. P. Jain; the constitutional law of India

Acts:

1. Representation of people act, 1951

Reports and others:

1. Govt. of India, law commission report no. 244 , Feb. 2014 on electoral disqualifications

2. Economic & Political Weekly JANUARY 4, 2014 vol. XLIX no 1

Websites:

1. http://www.webster.com

2. http://www.docstoc.com.

3. http://www.legalserviceindia.com

4. http://www.indiankanoon.com

5. http://www.lexisnexis.com.

6.

http://www.jurisonline.in

7. http://www.ssrc.in

8. http://www.ssrn.in
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