Criminalisation of Politics and Electoral Reforms

A project report submitted in partial fulfilment of the degree in Master of Laws (LL.M.) 2010 – 2012

SUBMITTED BY:Ms. Priyanka Das

Roll no: 14015V102015

Regd No: 31085/04

UNDER THE GUIDANCE OF
Prof. Dr. P.K.Sarkar P.G. Department of Law

POST-GRADUATE DEPARTMENT OF LAW, UTKAL UNIVERSITY Page | 1

VANI VIHAR, BHUBANESWAR (2010-2012)

Dedicated to my Parents and my Teachers…

Page | 2

Acknowledgement
The writing of this dissertation has been one of the most significant academic challenges I have ever had to face. Without the support and guidance of the following people, this study would not have been completed. I owe my gratitude to all those people who have made this dissertation possible. I would like to express my deep and sincere gratitude to my guide Prof. Dr. P.K. Sarkar, Professor in Law, P.G. Department of Law, Utkal University, for his continuous support. He was always there to listen and to give advice even after his busy schedule. He showed me different ways to approach a research problem and the need to be persistent to accomplish any goal. His understanding, encouraging and personal guidance have provided a good basis for the present thesis. Above all and the most needed, he provided me constant encouragement and support in diverse ways. Besides my guide, I am also greatly indebted to many teachers, especially Prof. Dr. P. K. Pattnaik, Dr. Durgesh Chandra Mohapatra, Reader of Law and Prof. Dr. Madhusudan Dash, H.O.D, for their valuable support and suggestions which helped me not only in completion of this dissertation but also in my two years of LL.M. programme. I am also obliged to acknowledge the administration for providing a wonderful library which is a store house of information and also for providing invaluable electronic resources without which no such research was ever possible. The Library and especially the librarian Mr. Chinmay Kumar Jena deserve a lot of thanks for being so helpful.

Page | 2

Collective and individual acknowledgments are also owed to my friends and seniors. Their support and care helped me overcome setbacks and stay focused on my study. I greatly value their friendship and I deeply appreciate their belief in me. Last but not the least I wish to avail myself of this opportunity, to express a sense of gratitude and love to my parents and family for the unconditional support, strength, help and encouragement they have given to pursue my interests and for everything. Finally, I would like to thank everybody who was important to the successful realization of thesis, as well as expressing my apology that I could not mention personally one by one.

PRIYANKA DAS
IInd Semester Rol l No. 14015V102015
Page | 3

P.G.Dept. of Law Utk al university, vani vihar

DECLARATION
I Ms. Priyanka Das hereby declare that the work embodied in this dissertation entitled, “Criminalisation of Politics And Electoral Reforms” researched and submitted by me under the guidance and supervision of Prof. Dr. P.K. Sarkar, Professor in Law, P.G. Department of Law, Vani vihar is an original, bona-fide and legitimate work and it has been pursued for an academic interest. This work or any type thereof has not been submitted by me or anyone else for the award of another degree of either this University or any other University.

Page | 4

PRIYANKA DAS L.L.M (2
ND

SEMESTER)

P.G. Deptt.of Law Utkal university, Vani vihar.

POST-GRADUATE DEPARTMENT OF LAW, UTKAL UNIVERSITY

VANI VIHAR, BHUBANESWAR

Certificate
It gives me pleasure to certify that Ms. Priyanka Das, student of LLM bearing Roll No. 14015V102015 has completed her Dissertation captioned, “Criminalisation of Politics And Electoral Reforms” in partial fulfilment of the requirements for the award of the Degree of Master of Laws under my supervision. Ms. Das collected valuable materials from different sources and thereafter analysed in systematic manner. The efforts made by Ms. Das will pave the way to further research in this field. I wish her all success in life.
Page | 2

Prof. (Dr.) P.K. Sarkar
Professor P.G. Department of Law. Utkal University, vani vihar. Bhubaneswar.

Page | 3

TABLE OF CASES
1. 2. 3. 4. 5. Kanwarlal Gupta vs. Amar Nath Chawla (1975) 3 SCC 646 Compendium of Instructions, 2009, Election Commission of India Proposed Electoral Reforms, 2004, Election Commission of India L.R. Shivaramagowde vs. P.M. Chandrasekhar AIR 1999 SC 252 Notification S.O. 425(E) dated 23rd February 2011 of the Ministry of Law and Justice (Legislative Department) 6. 7. 8. 9. Rajendran Chingaravelu vs. R.K. Mishra (SC: Civil Appeal No 7914 of 2009) Mohinder Singh Gill vs. Chief Election Commissioner (1978) ISSC 405 T.S. Krishna Murthy and Vijay Patidar, Case Study 2, India Common Cause a Registered Society vs. Union of India, 1996(2) SCC 752

10. Namit Oberoi, Reforming Election Funding, I NUJS L. Rev (2008) 137-148 11. P. Nalla Thampy Terah vs. Union of India AIR 1985 SC 133 12. C. Narayanswamy vs. C.K. Jaffer Sherief 1994 (Supp) 3 SCC 170 13. Gajanan Bapat vs. Dattaji Meghe 1995(5) SCC 437 14. Gadauh Yashwantrao Kankarrao Vs Balasaheb Vikhe Patil 1994(1) SCC 15. .AIADMK Vs. Chief Election Commissioner and Another 23.04.2001 1. 16. Union of India Vs. Association for Democratic Reforms & Another 02.05.2002 3 17. Indian National Congress (I) Vs. Institute of Social Welfare & Othrs 10.05.2002 ,39

Page | 4

18. Gujarat Election - Reference Case 28.10.2002 65
19. People’s Union for Civil Liberties (PUCL) & another Vs. Union of India and

other, 13.03.2003, 177. 20. Ram Phal Kundu Vs. Kamal Sharma 23.01.2004 271.

21. Manda Jaganath Vs. K.S. Rathnam & othrs 16.04.2004 299. 22. K. Prabhakaran Vs. P Jayarajan & 11.01.2005 311.

23. Ramesh Singh Dalal Vs. Nafe Singh & Othrs.
24. Rameshwar Prasad & Othrs. Vs. Union of India & Othrs. 24.01.2006 352 25. Michael B. Fernandes Vs. C.K. Jaffar Sharief & Othrs. 14.02.2002 377 26. Secretary, Ministry of Information & Broadcasting Vs. M/s. Gemini TV Pvt. Ltd.

and Others 13.04.2004 385.
27. Union of India Vs. Harbans Singh Jalal & Ors. 26.04.2001 394 28. Jaya Bachchan Vs. Union of India & Ors. 08.05.2006 398 29. Michael B. Fernandes Vs. C. K. Jaffer Sharief & Others ,Karnataka 405 High

Court05.02.2004
30. Election Commission of India Vs. State Chhattisgarh & othrs 417 of High Court

17.11.2003
31. Lalji Shukla and Ajai Mohan Sharma Vs. Election Commission & Others

Allahabad High Court 460 16.01.2002
32. AIADMK Vs. the Chief Election Commissioner & Others Madras High

court10.04.2001 465
Page | 1

33. Abhay Singh Vs. State of Uttar Pradesh & Others Allahabad High Court 04.2004 508
34. Rajasthan Advertising Company& Others Vs. RSRTC High Court Rajasthan

30.04.2004 ,512 35. HRA Choudhury & Others Vs. The Election Commission of India & Others High Court Gauhati 11.01.2002 522

REFERENCE
1. Manual of Election Law, 2004, Government of India, Ministry of Law and

Justice.
2. Chapter 4 on Electoral Processes and Political Parties, Constitutional

Commission Report.
3. N.S. Gehlot, Electoral Reforms in India: A need for national action within

Indian Politics, 212-234 (K.L. Kamal & R.P. Joshi ed 1996).
4. B. Hyedervali, Law and Corruption in India, 29 Indian Bar Rev (2002). 5. Citizens Campaign for Electoral Funding Reforms,

http://www.loksatta.org/ccer.htm. 6. Dolly Arora, State Funding of Elections Some Posers, Economic and Political Weekly (2000).
7. E. Sridharan, Reforming Political Finance, http://www.india-seminar.com

2001/506/5046536%20e.%20sridharan.htm.
8. M.V. Pylee, Emerging Trends of Indian Polity 43 (1998). 9. B. Venkatesh Kumar, Funding of Elections – Case for Institutionalized

Financing, Economic & Political Weekly, 1884 (1999).

Page | 1

10. C. Rajasekhar, Ensuring Free and Fair Elections: Role of Election Commission

of India, 26 Indian Bar Review (1999).
11. J.S. Bali, Political Parties and Electoral Reforms in Perspective of the

Constitution (1998).
12. Orissa Government Portal http://orissapanchayat.gov.in. 13. Official website of Orissa High Court for publication of HC Judgments

www.orissahighcourt.nic.in.
14. National Portal of India www.india.gov.in 15. S.T.Beuria, “Panchayat Polls Marred by Violence”, A Report in the Deccan

Herald Bangalore, 11th July 1992. 16. Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report.

TABLE OF CONTENT
Acknowledgement Declaration Certificate Table of Cases Reference

CHAPTER’S............................................................................................PAGE NO
1.

INTRODUCTION IN GENERAL. ➢ 1.1 OBJECTIVE OF THE STUDY.
Page | 1

➢ 1.2 HYPOTHESIS. ➢ 1.3 STATEMENT OF PROBLEM. ➢ 1.4 RESEARCH METHODOLOGY.
1.

HISTORICAL BACKGROUND ➢ 2.1 DEVELOPMENT OF THE CONCEPT.

1.

LEGISLATIVE FRAME-WORK.

2.

DISCUSSION ABOUT THE TOPIC.

3.

STATISTICAL AND EMPIRICAL STUDY.

4.

JUDICIAL REVIEW.

5. CONCLUSION. ➢ APPRAISALS, RECOMMENDATIONS AND SUGGESTIONS.
1.

BIBLIOGRAPHY.

Page | 1

CHAPTER 1 - INTRODUCTION

Page | 2

1. INTRODUCTION
CRIMINALISATION OF POLITICS
Democracy implies rule of law and holding of free elections to ascertain the will of the people. But in quite recent times this peaceful process of social change has been much vitiated. Violence, rigging, booth capturing etc. has become the order of the day. Criminalisation of politics has become a headache for the Indian democracy. It’s shameful to admit that in the world’s largest democracy the cult of the gun prevails; Goondas and Criminals are hired to capture booths and kill political rivals etc. In this way the entire democratic process is negated. What’s more surprising and rather shameful is that these people even after committing serious criminal offences make their way to the Parliament and Assemblies, which is the highest governing body in the country. Thus you can imagine what will be the fate of the nation, if power is given to undeserving criminals. In this project I have tried to identify a few Politicians in the current i.e. 15th Lok Sabha, with criminal records. I have discussed in detail what prompts them to commit crime with the help of different criminal theories with respect to the Indian context. Moreover, discussing the current legal policies in curbing the menace of criminalisation and the reforms required to make the world’s largest democracy clean and efficient enough to deliver. 1 CRIMINALISATION of politics is a grave problem in India. This menace began in Bihar and gradually spread to every nook and corner of the nation. In 2003, a law was introduced to prohibit the election of criminals to the legislative bodies. However, persons with criminal background continue to hold seats in Parliament and State Assemblies. This leads to a very undesirable and embarrassing situation when law1 • Dash, Siddhartha (2006): ‘Need for Electoral Reforms’ Orissa Review, January

Page | 2

breakers become law-makers and move around under police protection. During the 13th Lok Sabha elections candidates having criminal cases against them numbered 12 in Bihar and 17 in Uttar Pradesh. It has been rightly observed by J.P.Naik: “Power is the spoiler of men and it is more so in a country like India, where the hungry stomachs produce power hungry politicians.” The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. From time to time, it has set down norms and made recommendations to the government to curb the menace of criminalisation of politics. The Commission has urged all political parties to reach a consensus that no person with a criminal background will be given the party ticket. The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, charges pending and cases initiated against them. The information so furnished by the candidates shall be disseminated to the public, and to the print and electronic media.2

2 Rao, Ritu (2004): ‘Assessing the Electoral System: A Positive Verdict’, Economic and Political Weekly, December 18.

Page | 2

Criminalisation Of Politics A Threat To Democracy
SHIMLA: Identifying growing role of money power in the elections as 'a big menace' of Indian democracy, former Chief Election Commissioner BB Tandon has suggested a suitable legislation based on the political consensus against it. The Election Commission has made various recommendations regarding partial state funding of polls which should be given a serious thought, Tandon said. He said steps should also be taken to ensure transparency in the funds of political parties. Tandon pointed out that criminalisation of the political system is threatening the very roots of democracy. The election commission had recommended that the candidate should not be allowed to contest election if charges are framed against such person by the court."But these recommendations were not accepted by the standing committee of the parliament," Tandon said. The political parties should take a pragmatic view on this issue and come out with a suitable measure, the former CEC added. He also suggested political parties also evolve a code of ethics among themselves and not give ticket to such criminal elements. Tandon said, "It is only the will-power of the political parties which could help Indian democracy get rid of this menace”. The former CEC said before demitting office he had suggested to the President of India that appointment to the high offices of CEC and EC should be made by the President based on the recommendations of a high-level committee under the chairmanship of Prime Minister which should also have leader of the opposition of both houses of Parliament. Speaker of the Lok Sabha and the Vice Chairman of the Rajya Sabha should also be made members of this committee along with the Home Minister, he said. This should be broadly on the pattern which is prescribed under the law for appointment of Chief Information Commissioner and other Information Commissioner under the Rights to Information Act. Tandon congratulated the EC3 for conducting the recent election in Uttar Pradesh in a free, fearless and fair manner."This was a big challenge for the CEC N Gopalaswami and he successfully faced this challenge. It is for the first time in up not a single election related death or violence occurred," Tandon, a Himachal Pradesh cadre IAS officer, said.
3, www.eci.gov.in

Page | 3

ELECTORAL REFORMS IN INDIA
India stands as a model for many emerging democracies around the world. Free and fair elections are the hallmark of a well functioning democracy. While we are justifiably proud of our democracy, there are a number of areas which need to be strengthened for us to realise the true potential of a well functioning democracy. Our election system, from the selection of candidates, to the manner in which funds are raised and spent in election campaigns, are in dire need of significant changes. There has been a growing concern over the years in India about several aspects of our electoral system.
4

The Election Commission has made changes in several areas

to respond to some of the concerns. There have also been a number of committees which have examined the major issues pertaining to our electoral system and made a number of recommendations. But there remain some critical issues that might need legislative action to bring about the required changes. The criminalisation of our political system has been observed almost unanimously by all recent committees on politics and electoral reform. Criminalisation of politics has many forms, but perhaps the most alarming among them is the significant number of elected representatives with criminal charges pending against them. Two measures recommended by previous committees are discussed in this paper: enforcement of the disclosure of criminal antecedents of candidates, and eligibility restrictions for candidates with criminal cases pending against them. The financing of elections has become a major issue in the past few decades. It is widely believed that the cost of fighting elections has climbed far above the legal spending limits. This has resulted in lack of transparency, widespread corruption, and the pervasiveness of so-called ‘black money’. This paper summarises proposals made on the following issues: limits on campaign expenditure, disclosure and audit of assets and liabilities of candidates and parties, methods of reducing the cost of political campaigns, as well as state funding of elections.
4 Rao, Ritu (2004): ‘Assessing the Electoral System: A Positive Verdict’, Economic and Political Weekly, December 18.

Page | 4

The conduct of elections also has a number of issues that need to be addressed. While the massive size of the electorate makes holding elections a daunting task, it should not serve as a justification for the presence of issues such as booth capturing, intimidation of voters, tampered electoral rolls, large-scale rigging of elections and other polling irregularities; the proliferation of non-serious candidates; and the abuse of religion and caste in the mobilization of voters. Potential solutions to these problems are outlined in this paper. This paper also takes consideration of major issues dealing with the role of political parties in the electoral system: proliferation of non-serious parties; process of recognition and de-recognition of political parties; disclosure of assets and liabilities of parties; and audit and publishing of assets and liabilities. Resolution of election petitions and disputes, as well as rulings on defections, are two important processes seen to be operating in a slow and inefficient manner by many pervious committees. This paper reviews recommendations made to mitigate these problems. The Ministry of Law and Justice, Government of India, has constituted a Committee on Electoral Reforms.5 The main purpose of the Committee is to recommend to the government concrete ways in which our electoral system can be strengthened. The Committee will take into account the opinions of political leaders, Government servants, legal experts, NGOs, scholars, academics, journalists, and other stakeholders.

5 www.eci.gov.in

Page | 5

1.1OBJECTIVE OF THE STUDY

This project tries to address the following objectives:• • •
• •

To study the composition of MPs with criminal records. Analysing the reasons behind committing of crimes with the help of different criminal theories. Role of existing legal provisions regarding the qualification of candidates. Are they efficient enough to prevent criminals from contesting? Find out the Steps to curtail the criminalisation of politics. To study the composition of electoral processes in India regarding parliament and assembly elections. Find out the existing legal provisions regarding electoral reforms. Find out the Steps to strengthen the electoral reforms.


Page | 2

1.2HYPOTHESIS
1. The root cause of crime among politicians is the result of obsession with power and fearlessness of law. And crime is a shortcut to name, fame and money.

1. Indian politics is being maligned with the entry of criminals as a result of which

there is a rise in corruption and lawlessness in the society, to prevent these criminal antecedents the electoral reforms have turned out to be a powerful weapon in tackling the criminal aspect of elections. The election commission has turned out to be a big brother to keep a vigil on the criminals entering into politics.

Page | 1

1.3 STATEMENT OF PROBLEM

1. Criminalisation of politics in India: A study of politicians in the 15th Lok Sabha

with criminal records. This is about studying the composition of parliamentarians with criminal records in the current Lok Sabha so as to obtain a pattern whether the crime is centralized or scattered. Then, analysing with the help of different theories of crime the motivation behind the criminal acts. Studying the legal provisions in force to address the problem and suggesting reforms and solution to curb the menace.

2. Electoral reforms in India: A study of electoral reforms, its component,

processes and measures. This study is about the composition of election commission, its powers and jurisdictions to control and regulate the existing election process. Then analysing the effectiveness of the existing legislations on electoral reforms in regulating the elections in India at Panchayat, assembly and parliament elections. Then suggesting recommendations to further strengthening the electoral reforms.

Page | 2

1.4 RESEARCH METHODOLOGY

I being the researcher have derived the material from two sources, namely primary sources and secondary sources. This project work has been designed as a Doctrinal study.

Sources Of Primary Data Collection •

Books on criminal theories and constitutional provisions. Internet Databases including the websites of various newspapers like DNA, The Hindu, Times of India etc.

Magazines like Economical & Political Weekly, India Today and Frontline, Law Journals, Law Magazine, Periodicals, All India Reporters.

• •

Government Websites hosted by National Informatics Centre. Case studies from Manupatra.

Sources of Secondary Data Collection The secondary sources of the present study are interactions with my guide, professors and friends.

Page | 2

CHAPTER 2 – HISTORICAL BACKGROUND

DEVELOPMENT OF THE CONCEPTS
Page | 1

INDIA boasts of being the world’s largest democracy. With the passage of the 73rd and 74th Amendments on Panchayati Raj, it can make the further claim of being the most representative one, with over three million grassroot legislators being elected, a third of them women. The country has of course a strong democratic tradition of electoral politics and the Election Commission has won plaudits, both at home and abroad. But democracy goes beyond periodic elections, despite their seminal importance in ensuring free and fair choice. What is more important is the participative nature and quality of democratic governance. It is here that the country needs to be vigilant to ensure that its parliamentary system is not hollowed by the criminalisation of the political and electoral political process. Of course, electoral politics is not the sole reason for the criminalisation of politics. The lure of money and the role of vested interests are among other reasons. Nevertheless, many analysts believe that the electoral process is a major fount of corruption and criminalisation in the country. Gaining leverage on politicians has become the road to immunity, if not power. It is now common knowledge that a number of elected representatives to local bodies, state legislatures and even Parliament are persons of unsavoury reputation and, some of them hardened criminals. Alarmed by this trend the Supreme Court intervened a couple of years ago to order a disclosure regime that requires electoral candidates to make known their criminal record, if any, their assets and those of their immediate relatives, and their educational qualifications. The Central Election Commission worked out the related procedures and details. But, not altogether to the public’s surprise, the scheme was unanimously opposed by all parties on grounds that ranged from its impracticality to the likely harassment of innocent persons that it could cause. The story possibly goes back to the immediate post-Independence period when prohibition was introduced in the old Bombay and Madras presidencies. All it did was to drive the process of procuring liquor and imbibing it underground. Bootleggers flourished and all manner of noxious brews were peddled to the detriment of civic conduct, the law and public health. Prohibition was later scrapped, and then

Page | 2

reintroduced. But it has never truly worked - anywhere. However, it did permanently scar the Indian polity and society. Bootlegging flourished with the connivance of the police, bureaucracy and politicians. An underground supply chain came into being with an elaborate and accepted system of bribery. This ensured that the law-enforcement machinery was bought up to permit moonshining, with a guarantee of both immunity and impunity. The law permitted a certain class of persons to get liquor permits on medical considerations. Such medical certificates were soon on sale, corrupting the medical profession. The fact that drink and drunken revelry continued was an open secret. And behind it all, the liquor mafia grew in wealth, power and influence. An underground network developed, lubricated by bribery, corruption, blackmail and threats of violence. The mafia began to control men and mohallas, and developed their own protection squads to wage intergang wars and to deal with others foolish enough to cross their path. These liquor barons soon discovered that they did or could control vote banks through money and muscle. They were sought after by those in distresses to settle scores and by politicians to deliver votes or capture booths at election time. The mafia steadily grew and spread its tentacles over all manner of illicit operations — foreign exchange, smuggling, the flesh trade, real estate and all manner of other dodgy business. And as their reach and power grew, so did the demands made on them for electoral services, such as rigging, providing unaccounted money and preventing certain classes of people from voting. But services are never rendered gratis. There is a quid pro quo and elected legislators found that they had to dance to the tune of their paymasters and underworld benefactors at the cost of the electorate, the democratic ethos and good governance. Before long, mafia dons discovered that they had become king makers. From there it was but a short step to becoming king. Why trouble to buy a legislator to get things done in the corridors of power. Simpler to do the job oneself by entering the legislature, win respectability and acquire "leadership" status in the bargain. Some people do really believe that to be elected by whatever means is to be placed above the law! Consider the fact that certain criminals and not only in Bihar have been elected from prison. Others have been reported holding durbars in jail, with all home comforts, as they instruct their minions by cellphone and rule their empire, issuing diktats that few dare disobey. Some take anticipatory bail to avoid arrest. Others find it easier to
Page | 3

abscond while notices for their production in court are pasted on walls, nailed on doors and published and broadcast by the media. And when they are ready, they "surrender", engaging clever lawyers to argue their case! This narration is no exaggeration. Indeed, it leaves out much spice. The criminalisation of politics is widespread and has inevitably resulted in the politicisation of crime. Crime is now politics. The crime or wrong committed is of no matter. The question is on whose side the man is. The politicisation of crime has its own etiquette. But the message is the same. Poll protocol The malaise is sufficiently alarming for the Supreme Court to have intervened and the Election Commission to have laid down a protocol for the 2004 polls. The pro forma for disclosures with regard to assets and criminal background were in some ways too complex or left loopholes and the returning officers were also uncertain over procedures and definitions and otherwise overwhelmed by the mechanics of running the elections. However, that poll was a valuable learning experience both with regard to preparing better disclosure forms and securing better scrutiny and compliance for the future. The experiment evoked a very good public response and civil society groups set up a National Election Watch with regional/state units, to build local awareness about the new disclosure regime, interact with the Election Commission with regard to drawing up the forms, collating the information as disclosed by the candidates and then analysing them for the benefit of the media, local communities, political parties and others. Assets disclosure Analysis of the disclosures showed that many candidates were less than straightforward in recording their assets. With regard to criminality per se, there has been much debate on whether a person should be labelled a "criminal" just on the basis of charges or when an appeal is pending and until final conviction. "Due process", as often subverted in practice, can continue forever. However, there now appears to be a growing consensus that even if an appeal is pending against an adverse verdict in the

Page | 4

trial court, candidates should be persuaded or required not to contest until their name is finally cleared. Whether such moral sanction will work remains to be seen. It would be more to the point and, in any event, absolutely essential that the credibility of the criminal justice system be restored. The chain extends from police reforms to the removal of the wide discretionary powers that reside with the political establishment and the bureaucracy to persecute some and either block or delay proceedings against others. The so-called executive single directive that requires the prime minister/chief minister or a minister to sanction the prosecution of a minister/official has inhibited prosecutions. The lack of any automatic machinery to prosecute those against whom a prima facie case may have been made out by a commission of inquiry has also meant that such inquiries are of little more than archival interest. The investigative agencies, including the CBI, have been used quite brazenly for political purposes on more than one occasion. This has resulted in eroding the credibility of these agencies. The public has become cynical about any fixer or operator getting his just deserts. They are all escape artists and simply get away even with murder. Colluding with them are elements in the law enforcement machinery. FIRs are not recorded, evidence not collected, investigations are pursued in a lackadaisical fashion, there is little expedition, and the prosecution, when that stage is reached, is not pressed with vigour. There would appear to be a clear case for independent public prosecutors empowered to initiate criminal proceedings against any person, including ministers and civil servants, against whom a commission of inquiry or other investigatory body has made out a prima facie case. The idea that this could lead to misuse and abuse is far fetched. Anyone found guilty of manipulating the law in this fashion should also be liable to prosecution. Once the message goes abroad that none can act with impunity, howsoever high or well connected or moneyed, criminal elements will come to heel. Influential people should not be entitled to special treatment in prisons or lock-ups and the law (and punishment) must be equal for all. Nor is there any reason to treat such people as privileged. A lawbreaker is a lawbreaker and should not expect preferential treatment on grounds of birth, status or wealth. The law’s delays are exploited by criminals to postpone the day of reckoning. Adjournments are too easily granted, with the result that proceedings drag over months
Page | 5

and years and the cost of litigation itself becomes increasingly burdensome, if not prohibitive. There is a good case for putting matters on a fast track with a warning that should either party seek avoidable postponements, the trial will proceed ex parte. ELECTORAL REFORM Electoral reform is another imperative and is something that could help clean public life. The cost of elections has risen sharply but also exponentially, in Parkinsonian fashion, in keeping with the money available for spending! Constituencies are spread over large areas and the electorates are huge, in fact, country-size in the case of parliamentary seats. Reaching out to the voter is, therefore, not easy. Partial state funding6 has been advocated; though cynics believe that this will only add to the quantum of money candidates spend. The alternative is to limit the span of elections, something that has been partly achieved with the introduction of electronic voting machines. But this process has been vitiated by security considerations that have led increasingly to staggered polling, even within single states, let alone nationally, in order to be able to give the administration time to move around essential electoral and security personnel. It would be desirable to review this practice through consultations and reduce the election process to a span of a few days, even if old-time single-day polling is no longer possible. The other method would be to expand electronic canvassing and insist on a minimum number of election meetings when major contenders are brought on a single platform and can present their views before the people or be grilled by the media. This would be cost effective, both politically as well as in terms of outlays. It would be simple to make video recordings of these meetings and to replay them through some appropriate mechanism in different parts of the constituency. A far stricter accounting of electoral expenditure should also be required, with heavy penalties not excluding disqualification on defaulters and those found to have falsified their accounts. A reduction in election expenses will certainly reduce the dependence on slush funds and mafia support. More transparency
6 Dolly Arora, State Funding of Elections Some Posers, Economic and Political Weekly (2000).

Page | 6

The permit-licence raj has been partially dismantled. But there is scope for further de-regulation. This will reduce the premium on buying the discretionary power of decision-makers in favour of undeserving applicants. The newly legislated Right to Information Act will also promote a greater degree of transparency and accountability. Tackling terrorism A new phenomenon, absent 30 years ago, is terror. Real or imagined grievances and causes combined with the easy availability of small arms and other explosive material has engendered insurgency and terror. This too has spawned a certain kind of criminalisation of politics as witnessed in Punjab, the Northeast and Jammu & Kashmir. Fear buys compliance and silence. Insurgency and terrorism are, of course, far more complex phenomenon but do undoubtedly have a bearing on the criminalisation of politics. Caste and communal factors and feudal mindsets are also instrumental in subverting democratic norms and restraints. The sordid story of Dalit oppression and tribal exploitation bears the markings of a subtle criminalisation of politics. These too must be countered. Democracy is too precious a gift to be squandered or subverted by criminals. This is a battle that has to be collectively fought and won.

Page | 2

CHAPTER 3 –LEGISLATIVE FRAMEWORK

Page | 1

3.Legislative Framework

LAW COMMISSION OF INDIA REPORTS:7

Background - Whether in a parliamentary form of government or a Presidential form, indeed in every democracy, the process of election should be free, fair and equitable. Fortunately, our Constitution seek to provide for a free and fair election but problems have been arising in this regard on account of division in our polity on the basis of religion, caste, language, region and race. Free and fair elections are the very foundation of democratic institutions. However there has been a steady deterioration in the standards, practices and pronouncements of the political class, which fights the elections. Money-power, musclepower, corrupt practices and unfair means are being freely employed to win the elections. Over the years, several measures have been taken by Parliament to amend the laws relating to elections with a view to check the aforementioned forces. This report, which has been prepared after extensive consultations, is a step in the said process. It is hoped that Parliament will take prompt action to give them legislative imprimatur. • THE REPRESENTATION OF THE PEOPLE ACT, 1951:

This act basically came in force to provide the necessary guidelines for the electoral process in India. It suggests every procedure involved in the electoral process; from the conduct of polls, the machinery involved for free and fair elections, to disqualification of members on certain grounds. Our focus is basically on the part III of the act which talks

7 Reform of the Electoral Laws (Report No. 170) [1999] INLC 170
(1 May 1999)

Page | 2

about the disqualification of members on certain grounds. CHAPTER III Disqualifications for Membership of Parliament and State Legislatures.8 Some of the important provisions are as follows: Section 123 of the Act of 1951 enumerates the corrupt practices for the purposes of Act 1951. These are:(i) (ii) (iii) bribery Undue influence. Appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting on the ground of his religion race, caste, community or language, etc. (iv) Promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language. (v) (vi) (vii) (viii) (ix) (x) Propagation, commission or glorification of the practice of sati. Publication by a candidate or his agent, etc or any statement of fact which is false or defamatory. Hiring or procuring of vehicles or vessel for the free conveyance of voters. Incurring or authorizing of expenditure in contravention of section 77 i.e. in excess of the amounts prescribed. Obtaining or procuring any assistance from any person in the service of the Government. Booth capturing by a candidate or his agent or other person.

Consequences of commission of corrupt practices: The question whether a person found guilty of a corrupt practice at an election by a High Court or the Supreme Court in an election petition or an election by a High Court or the Supreme Court in an election petition or an election appeal should be disqualified for contesting future elections and if so, for what period is determined by the President under Section 8A (I) of the Representation of the people Act, 1951. The case of every such person is required to be submitted to the President by the Secretary of the House of
8 sec.7 to sec. 11 talks about the disqualification of members

Page | 2

which the impugned election related. Sub-section (3) of section 8A provides that the President shall obtain the opinion of the Election Commission on the above question of disqualification and shall act according to such opinion. The maximum period for which such person can be disqualified is six years from the date of order of the High Court / Supreme Court finding him guilty of a corrupt practice. The consequences of commission of corrupt practices may take any one or more of the following forms:(i)

disqualification for membership of Parliament and State Legislatures. The disqualification is for a period of six years from the date on which the order under Section 99 takes effect ( Section 8-A Act 1951)

(ii)

the person, found guilty of corrupt practice, by an order under section 99, may be disqualified from voting at election. The disqualification lasts for a period of six years from the date on which the order takes effect.

(iii)
(iv)

The person disqualified for membership or for voting for commission of corrupt practices, is also debarred from acting as an election agent. The High Court may declare the election of the returned candidate as void under section 100 (I) (b) on the ground that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.

Election may also be set aside for any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent if it is further proved that the result of the election, so far as it concerns a returned candidate, has been materially affected (section 100 (1) (d) (i)). Where there are more than two candidates contesting from a constituency, mere fact that a candidate secured the next highest number of votes after the returned candidate not sufficient to declare him elect on the conclusion that the returned candidate’s election was void for commission of corrupt practice. Representation of the people Act, 1951, S 101 (b), Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil. 9 Naming of guilty persons

9 (1994) 1 SCC 682, 725 :AIR 1994 SC 678.

Page | 2

The High Court when declaring the election to be void must also record a finding whether any corrupt practice has been committed the nature of such corrupt practice and the persons found guilty thereof, (Raj Krushna Bose v. Binod Kanungo).10 A notice has to be given to a person who is not a party to the petition to appear before the High Court and to show
11

cause

why

he

should

not

be

so

named,

(T.Nagappa v. T.Bassapa) . No fresh notice is required to be given to a party to the election petition in respect of the very charges which are the subject matter of enquiry therein and as to which he already has notice. Notice is necessary only in case of a person who is not a party and is required to be named under section 99. Under section 99, Act of 1951 the Court has no discretion in the matter. If the Court is of the view that any person, who is proved at the trial to have been guilty of any corrupt practice, the Court is bound to name that person. The duty under the Act 1951, is cast upon the Court or the Tribunal. Standard of proof: In Vimal (Dr.) v. Bhaguji,12 the Supreme Court has held that the allegation of corrupt practices must be established by clinching and unimpeachable evidence. Unless there is cogent evidence to take the case beyond reasonable doubt the election cannot be set aside. Agency in commission of corrupt practice: Under section 100 (1) (b) of the Act, if the corrupt practice is committed by a returned candidate or an election agent, the election is void without any further condition being fulfilled. But, if the corrupt practice is committed by any other person other than the candidate or his election agent, it must be shown that it was committed by him with the consent of the candidate or his election agent. Under section 100 (1) (d)(iii), if the corrupt practice is committed in the interest of the returned candidate by an agent other than his election agent, it is further to be shown that the result of the election in so far as it concerns the returned candidate, has been materially affected. The agent here means
10 AIR 1954 SC 202.
11 AIR 1955 SC 756 12 AIR 1995 SC 1836

Page | 2

the polling agent or any other person who is held to have acted in connection with the election with the consent of the candidate. A combine reading of clauses (b) and (d) (ii) of sub-section (1) of section 100 shows that there may be a corrupt practice committed by an agent with or without consent of the candidate or his election agent. If it is with the consent of the candidate or his election agent it will fall within the purview of subsection (1)(b) of section 100 as the expression any other person under section 100 (1)(b) will include an agent other than election agent: otherwise it will be within the ambit of sub-section (1)(d)(ii). Bribery Bribery is a corrupt practice. It is defined as under: 1. any gift, offer or promise by a candidate or his agent, or by any other person with the consent of a candidate or his election agent, of any gratification, to any person whomsoever, with the object, directly or indirectly, or inducing – 2. a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at an election, or 3. an elector to vote or refrain from voting at an election, or as a reward to – 4. a person for having so stood or not stood, or having withdrawn or not withdrawn his candidature, or
5. an elector for having voted or refrained from voting .

6. the receipt of, or agreement to receive, any gratification, whether as a motive or a reward7. by person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate : or 8. by any person for whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting or any candidate to withdraw or not to withdraw his candidature. Undue influence Undue influence as a corrupt practice is defined in clause (2) of Section 123, Act 1951. It means any direct or indirect interference, or attempt to interfere, on the part of the candidate or his agent or any other person with the consent of the candidate or his agent
Page | 2

with the free exercise of any electoral right (Section 123 (2), Act 1951). There are provisions added to this. Any person, as is referred to above, who threatens any candidate or elector or any person in whom a candidate or an elector is interested, with injury of any kind, including social ostracism, ex-communication or expulsion from any caste or community or induces or attempts to induce a candidate or an elector to believe that he will become an object of divine displeasure and spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector and will be guilty of undue influence.13 A declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right, does not amount to exercise of undue influence.14

THE CONSTITUTION OF INDIA –

The constitution of India15 talks about certain rights and privileges under the subject of, Powers, Privileges and Immunities of Parliaments and its members. These immunities give the member certain special privileges to carry out their duties in the parliament. Further Art-324-329A of the Constitution deals with Provisions regarding Election. Article 324 provides for the appointment of an Election Commission to superintendent, direct and control elections. The Election Commission is n independent autonomous body and the Constitution ensure as in the case of the Supreme Court and the High Courts, that it may be able to function freely without any Executive interference. Constitution of Election Commission - The Election Commission hall consist of the Chief Election Commissioner and such other Election Commissioners as the President may from time to time fix. The Chief Election Commissioner and other Election Commissioners are appointed by the President subject to the provisions of any law made by Parliament for the purpose (Art 324 (2)) when other Election Commissioners are appointed the Chief Election Commissioner shall ct as the Chairman of the Election
13 (section 123(2), Proviso (a) , Act 1953) 14 (Section 123 (2), proviso (b), Act, of 1951. 15 Article.105

Page | 2

Commission. The President may also appoint after consultation with Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in its functions (Art 324 (4)). The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine. These rules however, are subject to any law made by Parliament. The Chief Election Commissioner can be removed from his office in the same manner and on the same grounds as a judge of the Supreme Court. The conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment from office by the President. Other Election Commissioner and Regional Commissioners can be removed on the recommendation of the Chief Election Commissioner. They can therefore perform their duties without fear, or pressure from the Executive or party in power. The President or the Governor shall, when requested by the Election Commission, make available to the Election Commission such staff as may be necessary to discharge its function. Thus the Election Commission shall have generally few staff of its own. It can demand necessary staff from the Centre and State Governments whenever required. Function of Election Commission- According to Article 324 (1) the Election Commission performs the following functions. The superintendence, direction and control of the preparation of the electoral rolls and also the conduct of elections to Parliament. State Legislatures and to the offices of President and Vice-President. There shall be one general electoral roll for every territorial constituency (Art 325). No person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of them. The elections to the Parliament and State Legislatures are to be held on the basis of adult suffrage. Every person who is a citizen of India and who is not less than 18 years of age is not otherwise disqualified under this constitution or any law (Representation of People Act, 1950) made by the Legislature on the ground of non residence, unsoundness of mind, crime, or illegal practice, has a right to be registered as a voter (Article 326). Power of Parliament and State Legislatures with regard to election Law –

Page | 2

Article 327 empowers Parliament to make provisions with respect to all matters, relating to or in connection with election to Parliament and State Legislature, the preparation of electoral rolls, the delimitation of constituency and all other connected mattes. In exercise of the power conferred by Article 327, Parliament has enacted the Representation of people Acts, 1950 and 1951, the Presidential and Vice Presidential Elections Act 1952 and the Delimitation Commission Act, 1952, Article 328 confers a similar power on State Legislatures. The State Legislature can make laws relating to all the above mattes referred to under Article 327, in so far as provision in that behalf is not made by Parliament. Courts not to interfere in Election matters - Article 329 says that the validity of law relating to the delimitation of constituencies of the allotment of seats to such constituencies shall not be called in question in any court Clause (b) of Article 329 provides that elections can only be called in question by an election petition presented to such authority and in such manner as may be laid down by law made by the appropriate legislation. In exercise of the power under clause (b) of this Article Parliament enacted the Representation of Peoples Act. 1951. But neither Article 329 (b) nor the Representation of the People Act (before its amendment which said that the decision by order of the Election Tribunal shall be “final” could restrict the power of High Courts under Article 226, and the power of the Supreme Court under the Article 136. The Constitution (19th Amendment) Act, 1966, abolished the jurisdiction of Election Tribunals over election disputes. The Amendment has vested this power in the High Courts. The effect of vesting the power in the High Courts was to expedite decision in election disputes.

INDIAN PENAL CODE, 1860 –

Chapter IX-A, (Section 171A-Section 171 I) deals with “Of Offences Relating to Election.” In the Indian Penal Code the offence of making false statement in connection with election is defined in section 171-G as follow :

Page | 2

“Whoever with intent to affect the result of an election, makes or publishes any statement purporting to be a statement of fact which is false and which he either know or believes to be false, or does not believe to be true, in relation of the personal character or conduct of any candidate shall be punished with fine.” 171-A “Candidate”, “Electoral right”. DefinedFor the purposes of the Act(a) “candidate” means a person who has been nominated as a candidate at any election. (b) “electoral right” means the right of a person to stand or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.

171-B. Bribery(I) Whoever(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right ; or (ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery : Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (II) A person who offers, or agrees to give or offers or attempts to procure, a gratification shall be deemed to give a gratification. (III) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive

Page | 2

for doing, what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.

171-C Undue influence of elections – (1) Whoever, voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section (1) whoever(a) threatens any candidate, or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub section (1) (3) A declaration of public policy or a promise or public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. 171-D Personation at electionsWhoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictions name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way commits the offence of personation at an election. [Provided that nothing in this section shall apply to a person who has been authorized in vote as proxy for an elector under any law for the tie being to force in so far as he votes as a proxy for such elector]. 171-E. Punishment for bribery-

Page | 2

Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both: Provided that bribery by treating shall be punished with fine only. 171-F- Punishment for undue influence or personation at an election – Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. 171-G- False statement in connection with an election – Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.

171-H- Illegal payments in connection with an election – Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees. Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approved in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate. 171-I - Failure to keep election accountsWhoever being required by any law for the time being in force or any rule having the force of law to keep such accounts of expenses incurred at or in connection with an

Page | 2

election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.

Page | 2

Legal Threads
(1) Vohra Committee: 12 bombs blasts that shook Bombay on 13 march 1993, had involved the collaboration of a diffuse network of criminal gangs, police and customs officials as well as their political Patrons, a commission were institutes to investigate the socalled nexus. The report by N.N.Vohra16 found such deep involvement of politicians with organised crime all over India that it was barred from publication. Here Vohra observes "the various crime syndicate/mafia organisations have developed significant muscle and money power and established linkage with governmental functionaries, political leaders and other to be able to operate with impunity. As highlighted by the Vohra Committee Our elections involve a lot of black money and it is this use of black money in elections which has also brought about the criminalisation of politics. After all, the story of the Hawala scam started by the police stumbling to the Jain diaries in their effort to trace the money received by the Kashmir militants. The scam brought out the linkage between the corrupt businessmen, politicians, bureaucracy and the criminals. The 1993 Bombay blasts which took away the life of 300 people was made possible because RDX could be smuggled by allegedly bribing a customs official with Rs.20 lakhs. Some 15 years ago Vohra committee submitted its report to curb criminalisation of politics but the fact is that no application in this way is being made. This was mentioned in the petition submitted by the Speaker of Lok Sabha and President of India on 16th may that- “The subject of criminalisation of politics is one that concerns the entire nation closely. It is deeply disturbing that on the one hand, our polity is tolerant of ‘fake encounters’ (summary executions) of alleged criminals and terrorists, while our highest representative body Indian Parliament harbours people caught red-handed in acts of human trafficking, and convicted on charges of abduction and suspected murder”.
16 N.N. Vohra committee formed in October 1993. In the first meeting of the Committee held
on l5th July ‘93

Page | 1

(3) Right To Information Act And Criminalisation Of Politics:The Court held that the right to information - the right to know antecedents, including the criminal past, or assets of candidates - was a fundamental right under Article 19(1) (a) of the Constitution and that the information was fundamental for survival of democracy. In its Judgement of May 2, 2002, it directed the Election Commission to call for information on affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers on: Whether the candidate has been convicted / acquitted / discharged of any criminal offence in the past - if any, whether the candidate was accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge was framed or cognisance taken by the court of law. If so, requires the details thereof; the assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of the dependents; liabilities, if any, particularly of any overdue of any public financial institution or Government dues; educational qualifications of the candidate. The Right to Information Act 2005 is a historical Act that makes Government officials liable for punishment if they fail to respond to people within a stipulated timeframe. Many public servants are leading luxurious lifestyles, beyond the legal sources of their income. Many public servants are filing false affidavits about their annual income, wealth details to Election Commission of India / Vigilance Commission / other authorities, as the case may be. These authorities are not properly verifying these affidavits. Many scams, scandals are coming to light day in & day out, politicians are accusing each other of involvement in scams. Whereas, the said authorities are keeping mum, as if those affidavits filed by tainted public servants are true. The tainted public servants are not even providing full, right information to public as per RTI Act, lest the truth come out. This seen is very normal now a day that some public servants, caught redhanded during luxurious spending, they easily say that it is at their political party’s expense or their well wisher’s expense. However no entries are found in the account books of said parties to that respect. The law forbids public servants from accepting gifts, hospitality, favours beyond the value of rupees one hundred (Rs. 100), as it

Page | 2

may be a form of bribe. But one may ask all these under RTI 17. Right to Know is an inherent attribute of every person. Right to know differs only in one sense with right to information. Right to know is a natural right and right to information is a provision given by government to its people. Natural rights do not have any value legally until they are legally considered. Hence right to know as such implied in the freedom of speech and expression which is a legally considered right must have to be given a special value. Right to information as such will bring transparency of the government activities and allow the people to find remedies for those things by which they suffered

17 Sec 8, RTI ACT OF 2005.

Page | 3

CHAPTER 4 - SUBJECT ANALYSIS

Page | 1

4.SUBJECT ANALYSIS
CRIMINALISATION OF POLITICS
After 60 years of India’s independence the lives of commoners is far worse than under Britishers. The benefits of independence have reached only few, thus creating islands of few ultra rich people surrounded by vast sea of utterly poor. The rich people in nexus with those in power are getting favourable laws enacted to suit their ends. Those in power are shamelessly enjoying 5-star luxuries all at tax payer’s expense, while more than 50 million are starving to death. The criminalisation of politics, executive & judiciary is almost complete. The corruption has spread its tentacles far & wide, there is corruption from womb to tomb, from maternity hospital to grave yard. The injustices mated out, the atrocities perpetrated by public servants are worse than Britishers. The biggest confounding factor in the political environment of business is criminalisation of politics: people with criminal backgrounds becoming politicians and elected representatives. Around 20% of the members of the current Lok Sabha have criminal cases pending against them. The charges in several of these cases are of heinous crimes such as murder, robbery, kidnapping, and not just violation of Section 14418, or something similar. It is well known that all parties take the help of criminal elements to dominate the election scene in India. But this process is influencing the mind and the will of the people both to gain the majority to rule the country according to their will. The system of democracy is now changing into the dictatorship of some. Because the democracy of India are now in hands of the criminal who are not capable any way to hold the post if legislature and persons known to have a criminal past becoming legislators and ministers has not only become common but is being openly defended by leaders of political parties. A stage has now been reached when politicians openly
18 CRPC ACT, 1973

Page | 2

boast of their criminal connections. A statement made in the assembly by a minister of a north Indian state that he patronised and would continue to patronise gangsters to fight and win elections is an indication of the growing phenomenon where criminal background has become a prerequisite to win elections. Despite the countrywide debate generated by the Vohra Committee Report on criminalisation of politics, the system has changed only for the worse. Earlier in the 1960’s, the criminal was content helping (covertly) the politician win the election so he could in turn get protection from him. The roles have now been reversed. It is now the politician, who seeks protection from criminals. The latter seek direct access to power and hence become legislators or ministers. The Election Commission’s observation that nearly 40 members of the 11th Lok Sabha and 700 members of the state assemblies had a criminal past proves this. The Election Commission’s requirement that the prospective candidates file an affidavit listing the criminal charges they face has hardly made any dent in the growing criminalisation of politics. Some radical reforms in the existing law need to be undertaken urgently. Until this is done, political parties could take some initiative to curb this trend, by denying tickets to politicians with a criminal background. Far from it, party leaders invariably issue tickets to those with a criminal past because they can not only win elections, but also help other candidates win. The Election Commission is powerless in preventing criminals from contesting elections. The Representation of People Act allows it to debar candidates convicted of certain crimes, but cannot prevent those under trial or whose appeals from their earlier convictions are pending for disposal before the higher court for multiple murders or rape or corruption or theft from the public exchequer from representing the people in the country’s highest legislative forums. There have been a number of cases where persons under trial have contested elections, while in jail and won. Unfortunately, no political party has taken any concrete step to curb this malpractice. It is not difficult to see why political parties put up criminals as candidates. Given a situation in which the sanctity of elections is being increasingly undermined by rigging and booth-capturing, a criminal with muscle power has greater chances of winning than a clean and decent individual without such ‘capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s

Page | 2

representative institutions. The consequences of the trend, if allowed to continue unchecked, hardly deserve an elaboration and are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public. In fact a new dimension has been added to the process by the criminalisation of bureaucracy and the police. What makes the situation particularly dangerous is that a criminalised administration poses a serious threat to the country’s security even as Pakistan-sponsored cross-border terrorism continues unabated. This is clearly reflected in the fact that agents of the Inter Service Intelligence [ISI] have no difficulty in getting passports and driving licenses and carrying out their deadly assignments in India. De-criminalisation of politics should be the main issue in all elections in the country. While political parties have a serious responsibility not to put up criminals as candidates, voters have an equally strong responsibility of defeating candidates with a criminal record. Lately, the Election Commission of India has taken noticeable measures to check criminalisation of politics. It has already banned convicted people from contesting elections to the state legislature or parliament, at the same time; it has asked all criminally-charged persons to disclose all the charges they face, in the nomination paper. This information will be easily made available to the public. Cases pending against politicians should be settled as quickly as possible. It is found that cases against them remain pending for long and they keep winning elections while the cases remain pending. Later, with their ministerial power, they manipulate the cases in their favour. Withdrawal of criminal charges against some tainted ministers of the present government is a case in point.

Components
(1) MusclePower:The influence of muscle power in Indian politics has been a fact of life for a long time. As early as in 1977, the National Police Commission headed by Dharam Vira observed: ``The manner in which different political parties have functioned, particularly on the eve of periodic election, involves the free use of musclemen and ‘Dadas’ to influence the attitude and conduct of sizable sections of the electorate.

Page | 3

The Panchayat elections19, like other elections in the recent past, have demonstrated once again that there can be no sanity in India as long as politics continues to be based on caste and religion. Gangsterism. The politicians are thriving today on the basis of muscle power provided by criminals. The common people who constitute the voters are in most cases too reluctant to take measures that would curtail the criminal activities. Once the political aspect joins the criminal elements the nexus becomes extremely dangerous. Many of politicians choose muscle power to gain vote bank in the country, and they apply the assumption that, if we are unable to bring faith in the community then we can generate fear or threat to get the power in the form of election. (2) MoneyPower:-

The elections to Parliament and State Legislatures are very expensive and it is a widely accepted fact that huge election expenditure is the root cause for corruption in India. A candidate has to spend lakhs of rupees to get elected and even if he gets elected, the total salary he gets during his tenure as an MP/MLA will be meagre compared to his election expenses. How can he bridge the gap between the income and expenses? Publicly through donations and secretly through illegal means. The expenditure estimation for an election estimated as Rs 5 per voter as election expenditure, for 600 million voters, and calculation of all the expenses in a general election estimated around Rs 2,000 crore. Then there is the period between elections. This requires around Rs 250 crore. Then there are state elections and local elections. All told, the system has to generate around Rs 5,000 crore in a five year cycle or Rs 1,000 crore on average each year. Where is this money to come from? Only criminal activity can generate such large sums of untaxed funds. That is why you have criminals in politics. They have money and muscle, so they win and help others in their party win as well.

Reasons Of This Criminalisation
19 S.T.Beuria, “Panchayat Polls Marred by Violence”, A Report in the Deccan Herald Bangalore, 11th
July 1992.

Page | 2

(1) VoteBank:The political parties and independent candidates have astronomical expenditure for vote buying and other illegitimate purposes through these criminals or so called Goondas. A politician’s link with them constituency provides a congenial climate to political crime. Those who do not know why they ought to vote comprise the majority of voters of this country. Therefore majority of the voters are manoeuvrable, purchasable. Most of them are individually timid and collectively coward. To gain their support is easier for the unscrupulous than the conscientious. We have long witnessed criminals being wooed by political parties and given cabinet posts because their muscle and money power fetches crucial votes. Elections are won and lost on swings of just 1% of the vote, so parties cynically woo every possible vote bank, including those headed by accused robbers and murderers. Legal delays ensure that the accused will die of old age before being convicted, so parties virtuously insist that these chaps must be regarded as innocent till proved guilty. (2)Corruption:In every election all parties without exception put up candidates with a criminal background. Even though some of us whine about the decision taken by the parties, the general trend is that these candidates are elected to office. By acting in such a manner we fail to realize that the greatest power that democracy arms the people is to vote incompetent people out of power. Independence has taken place through a two-stage process. The first stage was the corrupting of the institutions and the second stage was the institutionalization of corruption. As we look at the corruption scene today, we find that we have reached this stage because the corrupting of the institutions in turn has finally led to the institutionalization of corruption. The failure to deal with corruption has bred contempt for the law. When there is contempt for the law and this is combined with the criminalisation of politics, corruption flourishes. India is ranked 66 out of 85 in the Corruption Perception Index 1998 by the German non-government organization Transparency International based in Berlin. This means that 65 countries were perceived to be less corrupt than India and 19 were perceived to be more corrupt. (3) Loop Holes In The Functioning Of Election Commission:The Election Commission must take adequate measures to break the nexus
Page | 1

between the criminals and the politicians. The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts and so on in their nomination papers is a step in the right direction if it applied properly. Too much should not be expected, however, from these disclosures. They would only inform people of the candidate’s history and qualifications, but not prohibit them from casting their votes, regardless, in favour of a criminal. For the past several general elections there has existed a gulf between the Election Commission and the voter. Common people hardly come to know the rules made by the commission. Bridging this gap is essential not only for rooting out undesirable elements from politics but also for the survival of our democratic polity. This is an incremental process, the rate of success of which is directly proportional to the increase in literacy rate in India. The electorate have made certain wrong choices in the past, but in the future national interest should guide them in making intelligent choices. (4) Denial of Justiceand Rule ofLaw: -

Criminalisation is a fact of Indian electoral politics today. The voters, political parties and the law and order machinery of the state are all equally responsible for this. There is very little faith in India in the efficacy of the democratic process in actually delivering good governance. This extends to accepting criminalisation of politics as a fact of life. Toothless laws against convicted criminals standing for elections further encourage this process. Under current law, only people who have been convicted at least on two counts be debarred from becoming candidates. This leaves the field open for charge sheeted criminals, many of whom are habitual offenders or history-sheeters. It is mystifying indeed why a person should be convicted on two counts to be disqualified from fighting elections. The real problem lies in the definitions. Thus, unless a person has been convicted, he is not a criminal. Mere charge-sheets and pending cases do not suffice as bars to being nominated to fight an election. So the law has to be changed accordingly.

Criminal theories with respect to Criminalisation of politics
1) Humans are creature of conformity who always wants to do the right thing –
Page | 2

An excellent example of this conformity perspective in criminology is the ‘Strain Theory’ of ‘Robert K. Merton’20. Merton’s Strain theory argues that humans are fundamentally conforming beings. Most members of a given society desire what the other member of the society desire. For e.g. in America, accumulation of wealth or status is all important. However, it’s very important to understand that the access or means for reaching these goals are not equally available to everyone in the society. Some have the education, social network, personal contacts, family influence and in some cases might. And some do not have these opportunities. The strain theory predicts that crime and delinquency occur when there is a perceived discrepancy between the materialistic values and goals cherished and held in high esteem by a society and the availability of the legitimate means for reaching these goals. Thus, it can be easily contrasted in the Indian scenario that you will find most of the politicians who are committing crimes are basically criminal turned politicians, who in an attempt to legitimize their power got to politics. People who are educated are comparatively less prone to commit crime rather they will try to stick to democratic means. For e.g. you will find crimes in the political constituencies where there is illiteracy, poverty and no development at all. People from this marginalized areas in search of power resort to might. 2) Expectancy Theory – Julian Rotter is best known for drawing attention to the importance of expectations about the consequences of behavior. In other words, before doing anything, we ask, “what has happened to me before this situation and what will I gain this time?” Applying Rotter’s theory to criminal behavior we should say that when people engage in unlawful conduct, they expect to gain something in the form of status, power, security, affection, material goods or living conditions. It becomes very clear from the above statement that politicians for instance will not hesitate to engage themselves in some unlawful activity if they gain something in return, preferably
20 Bartol Curt R. (2001). Criminal behavior – A Psychosocial Approach, fifth edition, Prentice Hall
Inc.

Page | 2

power or status. 3) Imitational Aspects of Social Learning – Bandura introduced the idea of, what he called observational learning or modeling, to the social learning process. He contended that much of our behavior is initially acquired by watching others, who are called models. The observed behavior of the model is also more likely to be imitated if the observer sees the model receive an award. Conversely, it’s less likely to be imitated if the model is punished. Bandura believes much like Rotter that once a person decides to use a newly acquired behavior, whether he or she will maintain that behavior depends on the prospects of the potential gain. Let’s understand this principle in the light of our topic. The newcomers in politics will find a model or guru in the political field, and if he follows a politician who has certainly achieved name and money by doing criminal acts, it’s highly likely that he will also follow the same footsteps. But if people have a good example that committing crime is a very serious mistake in society, people are less likely to resort to criminal behaviour.

ELECTORAL SYSTEM IN INDIA
Elections enable every adult citizen of the country to participate in the process of Government formation. You must have observed that elections are held in our country frequently. These include elections to elect members of the Lok Sabha, Rajya Sabha, State Legislative Assemblies (Vidhan Sabhas) Legislative Councils (Vidhan Parishad) and of, President and Vice-President of India. Elections are also held for local bodies such as municipalities, municipal corporations and Panchayati Raj justifications. If you have attained the age of 18, you must have voted in some of these elections. If not, you will have the opportunity to vote in the next round of elections. These elections are held on the basis of universal adult franchise, which means all Indians of 18 years of age and above have the right to vote, irrespective of their caste, colour, religion, sex or place of birth. Election is a complex exercise. It involves schedules rules and machinery. This lesson will give you a clear picture of the voting procedure, as also about filing of nominations, their scrutiny and the campaigns carried out by the parties and the candidates before actual polling. In this
Page | 2

lesson you will read about the Election Commission, electoral system in India and also some suggestions for electoral reforms. ELECTION COMMISSION OF INDIA The architects of the Indian Constitution attached special significance to independent electoral machinery for the conduct of elections. The Constitution of India provides for an Election Commission of India21 which is responsible for superintendence direction and control of all elections. It is responsible for conducting elections to both the Houses of Parliament and State Legislatures and for the offices of President and Vice-President. Besides, it is also responsible for the preparation revision, updation and maintenance of lists of voters. It delimits constituencies for election to the Parliament and the State Legislatures, fixes the election programme and settles election disputes. It performs many other functions related to elections. Composition The Election Commission consists of the Chief Election Commissioner and such other Election Commissioners as may be decided by the President from time to time. Ever since the first Chief Election Commissioner was appointed in 1950, there was no other Election Commissioner till 1989. The Chief Election Commissioner was assisted by a larger number of officials. The Election Commission became a multi-member body on 16 October 1989 when the President appointed two more Election Commissioners. The senior of the two Election Commissioners is appointed as the Chief Election Commissioner. Tenure and Removal Chief Election Commissioner and other Election Commissioners are appointed for a term of six years, or till the age of 65 whichever is earlier. It is important that

21 C. Rajasekhar, Ensuring Free and Fair Elections: Role of Election Commission of India, 26 Indian Bar
Review (1999).

Page | 2

Chief Election Commissioner and other Election Commissioners should be free from all political interferences. Therefore, even if they are appointed by the President, they cannot be removed by him. And no changes can be brought in the conditions of service and the tenure of office after their appointment. The Chief Election Commissioner cannot be removed from office, except on the grounds and in the manner on which the Supreme Court judges can be removed. However, since the other Election Commissioners and the Regional Election Commissioners work under the Chief Commissioner, they may be removed by the President on his recommendations. POWERS AND FUNCTIONS OF ELECTION COMMISSION The primary function of the Election Commission is to conduct free and fair elections in India. For this purpose, the Election Commission has the following functions22: Delimitation of Constituencies To facilitate the process of elections, a country has to be divided into several constituencies. Constituency - It is territorial area from where a candidate contests elections The task of delimiting constituencies is generally performed by the Delimitation Commission consisting of five serving or retired judges of the Supreme Court and the Chief Election Commissioner who is its ex-officio member. All secretarial assistance (at all levels, national, state, district) is provided to the Delimitation Commission by the Election Commission. The Delimitation Commission is constituted by the Government from time to time.

Preparation of Electoral Rolls
Each constituency has a comprehensive list of voters. It is known as the Electoral Roll, or the Voters’ List. The Commission prepares the Electoral Roll for Parliament as well as Legislative Assembly elections. The Electoral Roll of every constituency contains the names of all the persons who have right to vote in that
22 Manual of Election Law, 2004, Government of India, Ministry of Law and Justice

Page | 2

constituency. The electoral roll is also revised from time to time generally before every general election, by-election and mid-term election in the constituency.

Recognition of Political Parties
One of the important functions of the Election Commission is to recognise political parties as all India (National) or State (Regional) Political Parties23. If in a general election, a particular party gets four percent of the total valid votes polled in any four states it is recognised as an all India (National) Party. If a party gets four percent of the total valid votes in a state, it is recognized as a State or regional party. (You will read in details about Political Parties in the following Lesson No.19). The Indian National Congress, the Bharatiya Janata Party (BJP), the Communist Party of India (CPI), The Communist Party of India (Marxist) the Bahujan Samaj Party (BSP) and the Nationalist Congress Party are at present (2006) major recognised national parties.

Allotment of Symbol
Political Parties have symbols which are allotted by the Election Commission. For example, Hand is the symbol of the Indian National Congress, Lotus is the symbol of the Bharatiya Janata Party (BJP) and Elephant is the symbol of Bahujan Samaj Party. These symbols are significant for the following reasons: 1. 2. They are a help for the illiterate voters who cannot read the names of the They help in differentiating between two candidates having the same name. candidates.

OFFICERS ON DUTY
To ensure that elections are held in free and fair manner, the Election Commission

23 M.V. Pylee, Emerging Trends of Indian Polity 43 (1998).

Page | 2

appoints thousands of polling personnel to assist in the election work. These personnel are drawn among magistrates, police officers, civil servants, clerks, typists, school teachers, drivers, peons etc. Out of these there are three main officials who play very important role in the conduct of free and fair election. They are Returning Officer, Presiding Officer and Polling Officers.

Returning Officer
In every constituency, one Officer is designated as Returning Officer by the Commission in consultation with the concerned State government. However, an Officer can be nominated as Returning Officer for more than one constituency. All the nomination papers are submitted to the Returning Officer. Papers are scrutinised by him/her and if they are in order, accepted by him/her. Election symbols are allotted by him/her in accordance with the directions issued by the Election Commission. He/she also accepts withdrawal of the candidates and announces the final list. He/she supervises all the polling booths, votes are counted under his/her supervision and finally result is announced by him/her. In fact, the Returning Officer is the overall incharge of the efficient and fair conduct of elections in the concerned constituency.

Presiding Officers
Every constituency has a large number of polling booths. Each polling booth on an average caters to about a thousands votes. Every such booth is under the charge of an officer who is called the Presiding Officer. He/she supervises the entire process polling in the polling booth and ensures that every voter gets an opportunity to cast vote freely. After the polling is over he/she seals all the ballot boxes and deliver them to the Returning Officer.

Polling Officers
Every Presiding Officer is assisted by three to four polling officers. They check the names of the voters in the electoral roll, put indelible ink on the finger of the voter, issue ballot papers and ensure that votes are secretly cast by each voter. Indelible ink – This ink cannot be removed easily. It is put on the first finger of the right hand of the voter so that a person does not come again to cast vote for the second time. This is done to avoid impersonation.
Page | 2

ELECTORAL PROCESSES
ELECTION PROCESS Questions 18.1
The following process is observed. Elections in India are conducted according to the procedure laid down by law.

Notification for Election
The process of election24 officially begins when on the recommendation of Election Commission, the President in case of Lok Sabha and the Governor in case of State Assembly issue a notification for the election. Seven days are given to candidates to file nomination. The seventh day is the last date after the issue of notification excluding Sunday. Scrutiny of nomination papers is done on the day normally after the last date of filing nominations. The candidate can withdraw his/her nomination on the second day after the scrutiny of papers. Election is held not earlier than twentieth day after the withdrawal.

Filing of Nomination
A person who intends to contest an election is required to file the nomination paper in a prescribed form indicating his name, age, postal address and serial number in the electoral rolls25. The candidate is required to be duly proposed and seconded by at least two voters registered in the concerned constituency. Every candidate has to take an oath or make affirmation. These papers are then submitted to the Returning Officer designated by the Election Commission.

Security Deposit
Every candidate has to make a security deposit26 at the time of filing nomination.
24 Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report.

25 http://www.loksatta.org/ccer.htm. 26 E. Sridharan, Reforming Political Finance, http://www.india-seminar.com 2001/506/5046536%20e.
%20sridharan.htm.

Page | 2

For Lok Sabha every candidate has to make a security deposit of Rs.10,000/- and for State Assembly Rs. 5,000. But candidates belonging to Scheduled Castes and Scheduled Tribes are required to deposit Rs. 5,000/– for if contesting the Lok Sabha elections and Rs. 2,500/– for contesting Vidhan Sabha elections. The security deposit is forfeited if the candidate fails to get at least 1/6 of the total valid votes polled.

Scrutiny and Withdrawal
All nomination papers received by the Returning Officer are scrutinised on the day fixed by the Election Commission. This is done to ensure that all papers are filled according to the procedure laid down and accompanied by required security deposit. The Returning Officer is empowered to reject a nomination paper on any one of the following ground: (i) (ii) If the candidate is less than 25 years of age. If he/she has not made security deposit.

(iii) If he/she is holding any office of profit. (iv) If he/she is not listed as a voter anywhere in the country The second day after the scrutiny of nomination papers is the last date for the withdrawal of the candidates. In case that day happens to be a holiday or Sunday, the day immediately after that is fixed as the last day for the withdrawal.

Election Campaign
Campaigning is the process by which a candidate tries to persuade the voters to vote for him rather than others. During this period, the candidates try to travel through their Constituency to influence as many voters as possible to vote in their favour. In the recent times, the Election Commission has granted all the recognised National and Regional Parties, free access to the State-owned electronic media, the All India Radio (AIR) and the Doordarshan to do their campaigning. The total free time is fixed by the Election Commission which is allotted to all the political parties. Campaigning stops 48 hours before the day of polling. A number of campaign techniques are involved in the election process. Some of these are: i. Holding of public meetings ii. Distribution of handbills, highlighting the main issues of their election manifesto (election manifesto is a document issued by political party. It is declaration of
Page | 2

policies and iii. iv.

Programmes of their party)

Door to door appeal by influential people in the party. Broadcasting and telecasting of speeches by various political leaders.

Model Code of Conduct
During the campaign period the political parties and the contesting candidates are expected to abide by a model code of conduct evolved by the Election Commission of India on the basis of the consensus among political parties. It comes into force the moment schedule of the party concerned – election is announced by the Election Commission. The code of conduct is as follows:
(i) (ii)

Political Parties and contesting candidates should not use religious places for election Campaign. Such speeches should not be delivered in a way to create hatred among different Communities belonging to different religions, castes and languages, etc.

(iii) (iv)

Official machinery should not be used for election work. No new grants can be sanctioned, no new schemes or projects can be started

once the election dates are announced. (v) One cannot misuse mass media for partisan coverage.

Scrutinisation of Expenses
Though the Election Commission provides free access for a limited time to all the recognised National and State parties for their campaign, this does not mean that political parties do not spend anything on their elections campaign. The political parties and the candidates contesting election spend large sum of amount on their election campaign. However, the Election Commission has the power to scrutinise the election expenses to be incurred by the candidates. There is a ceiling on expenses to be incurred in Parliamentary as well as State Assembly elections. Every candidate is required to file an account of his election expenses within 45 days of declaration of results. In case of default or if the candidate has incurred (expenses) more than the prescribed limit, the Election Commission can take appropriate action and the candidate elected may be disqualified and his election may be Countermanded.

Page | 2

Polling, Counting and Declaration of Result
In order to conduct polling, large numbers of polling booths are set up in each constituency. Each booth is placed under the charge of a Presiding Officer with the Polling Officers to help the process. A voter casts his/her vote secretly in an enclosure, so that no other person comes to know of the choice he/she has made. It is known as secret ballot. After the polling is over, ballot boxes are sealed in the presence of agents of the candidates. Agents ensure that no voter is denied right to vote, provided the voter turns up comes within the prescribed time limit.

Electronic Voting Machines (EVMs)
The Election Commission has started using tamper proof electronic voting machines to ensure free and fair elections. Each machine has the names and symbols of the candidate in a constituency. One Electronic Voting Machine (EVM) can accommodate maximum of 16 candidates. But if the number exceeds 16, then more than one EVM may be used. If the number of candidates is very large, ballot papers may be used. The voter has to press the appropriate button to vote for the candidate of his/her choice. As soon as the button is pressed, the machine is automatically switched off. Then comes the turn of the next voter. The machine is easy to operate, and with this the use of ballot paper and ballot boxes is done away with. When the machine is used, the counting of votes becomes more convenient and faster. The EVMs were used in all the seven Lok Sabha constituencies in Delhi in 1999, and later in all the State Assembly constituencies. In 2004 General Elections EVMs were used all over the country for Lok Sabha election.

Electronic Voting Machine (EVM)

Page | 1

The sealed ballot boxes or EVMs are shifted in tight security to the counting centre. Counting takes place under the supervision of the Returning Officer and in the presence of candidates and their agents. If there is any doubt about the validity or otherwise of a Vote, decision of the Returning Officer is final. As soon as counting is over, the candidate securing the maximum number of votes is declared elected (or returned) by the Returning Officer. Re-poll – If at the time of polling, a booth is captured by some anti-social elements, the Election Commission may order holding of re-poll in either the entire constituency or Particular booths. Countermanding of Election. If a duly nominated candidate belonging to a recognised Party dies at any time after the last date of nomination and before the commencement of Polling, the Election Commission orders countermanding the elections. This is not just Postponement of polling. The entire election process, beginning from nominations is initiated afresh in the concerned constituency.

SHORT COMINGS OF INDIAN ELECTORAL SYSTEM
There has been universal appreciation of the Indian electoral system. People have hailed the manner in which elections have been conducted in India. But there are its weaknesses. It has been seen that in spite of the efforts of Election Commission to ensure free and fair election, there are certain shortcomings of our Electoral system. Some notable weaknesses are discussed below:

Money Power
The role of unaccounted money in elections has become a serious problem. The political parties collect funds from companies and business houses, and then use this money to influence the voter to vote in their favour. The business contributions are mostly in cash and are not unaccounted. Many other corrupt practices are also adopted during election such as bribing, rigging or voters intimidation, impersonation and providing transport and conveyance of voters to and fro the polling stations. The reports of liquor being distributed in poor areas are frequent during election.
Page | 2

Muscle Power
Earlier the criminals used to support the candidates by intimidating the voter at a gunpoint to vote according to their direction. Now they themselves have come out openly by contesting the elections leading to criminalisation of politics. As a result violence during elections has also increased.

Caste and Religion
Generally the candidates are given tickets by the political parties on the consideration whether the candidate and possesses enough resources. Even the electorates vote on the caste and communal lines. Communal loyalties of the voters are used at the time of propaganda campaign.

Misuse of Government Machinery
All the political parties do not have equal opportunity in respect of access to resources. The party in power is always in advantageous position then the opposition parties. There is widespread allegation that the party in power accomplishes misuse of government machinery. All these features lead to violence, booth capturing, rigging bogus voting, forcible removal of ballot papers, ballot boxes burning of vehicles, etc. which result into loss of public faith in election. In order to restore the confidence of the public in the democratic electoral system, many electoral reforms have been recommended from time to time by Tarkunde Committee and Goswami Committee which were particularly appointed to study and report on the scheme for Electoral Reforms in the year 1974 and 1990 respectively. Out of these recommendations some have been implemented. In fact, it was under the chairmanship of the then Chief Election Commissioner, T.N. Seshan, that Election Commission initiated many more measures to ensure free and fair elections. Some of the reforms which have been implemented so far are as follows: 1. 2. with
Page | 1

The voting age has been lowered from 21 years to 18 years. This has helped Another landmark change has been the increase in the amount of security deposit

increase the number of voters and response confidence in the youth of the country. by the candidate to prevent many nonserious candidates from contesting elections

Page | 2

ELECTORAL REFORMS
In order to restore the confidence of the public in the democratic electoral system, many Electoral reforms27 have been recommended from time to time by Tarkunde Committee and Goswami Committee which were particularly appointed to study and report on the scheme for Electoral Reforms in the year 1974 and 1990 respectively. Out of these recommendations some have been implemented. In fact, it was under the chairmanship of the then Chief Election Commissioner, T.N. Seshan, that Election Commission initiated many more measures to ensure free and fair elections. Some of the reforms28 which have been implemented so far are as follows: 1. The voting age has been lowered from 21 years to 18 years. This has helped increase the number of voters and response confidence in the youth of the country.
2. Another landmark change has been the increase in the amount of security deposit

by the candidate to prevent many nonserious candidates from contesting elections with an ulterior motive.
3. The photo identity cards have been introduced to eradicate bogus voting or

impersonation.
4.

With the introduction of Electronic Voting Machine (EVM) the voting capturing, rigging and bogus voting may not be possible. The use of EVM will in the long run result in reducing the cost of holding elections and also the incidence of tampering during counting of votes.

5.

If a discrepancy is found between the member of votes polled and number of total votes counted, the Returning officer away report the matter forthwith to Election Commission. Election Commission on such report may either declare the poll at the particular polling station as void and give a date for fresh poll or countermand election in that constituency. There is no doubt that India needs drastic poll reforms but still the fact remains that Indian elections have been largely free and fair and successfully conducted. It gives

27 N.S. Gehlot, Electoral Reforms in India: A need for national action within Indian Politics, 212-234
(K.L. Kamal & R.P. Joshi, ed 1996). 28 Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report

Page | 1

the country the proud distinction of being the largest democracy in the world. In order to conduct free and fair elections in India, Election Commission as an impartial body has been established by the Constitution itself. It is a three-member body. The main functions of the Election Commission29 are to delimit the constituencies, recognise the political parties, allot the symbols, and appoint officials to conduct and supervise the elections; The electoral process begins with the issue of notification by the President. The Election Commission releases the schedule for election and, issues model code of conduct to be followed during elections. The contesting candidates file their nomination papers. Their papers are scrutinised by the concerned Returning Officers after which they are either accepted or rejected. The candidates can also withdraw their nominations. During the election campaign, political parties and their candidate release their respective Election Manifestos. A large number of public meetings and door-to-door campaign are organised and the electronic media, TV and Radio etc. are used to win the people’s confidence. On the polling day the Election Commission ensures that voters cast their votes in free and fair manner. The candidate who secures highest number of votes in a constituency is declared elected. Recently Electronic Voting Machine has been introduced, it has replaced the use of ballot papers and ballot boxes. This change has yielded positive outcomes, as no bogus voting, rigging or booth capturing can happen now, and the counting can be completed in no time. Though Election Commission tries its best to conduct free and fair elections our electoral system is faced with the problems like use of money and muscle powers, and other corrupt practices. To avoid all this certain electoral reforms have been introduced from time to time.

29 J.S. Bali, Political Parties and Electoral Reforms in Perspective of the Constitution (1998).

Page | 2

CHAPTER 5 – STATISTICAL & EMPIRICAL STUDY

Page | 3

5.STATISTICAL AND EMPIRICAL STUDY
Composition of Members in the Parliament with Criminal Records-[The following statistics are part of the research conducted by National Election Watch, with the help of data given by the election commission of India] 30 .The following tables will certainly give an idea about the composition of members with various kind of criminal records in the Parliament -

Analysis of 2009 Lok Sabha Winners based on Criminal Background New Delhi: May 16: National Election Watch31 NEWS, a nationwide campaign comprising of more than 1200 NGOs and other citizen led organizations, has been working on electoral reforms, improving democracy and governance in India. This is a press release for results of these elections for Lok Sabha constituencies General: A total of 8070 candidates representing 369 parties contested in the recently held elections. Out of 369 parties, only 36 parties have been successful in sending one or more MPs into the Lok Sabha. 333 parties that contested elections did not win even a single seat. And 19 parties have 3 or less MPs in the newly formed Lok Sabha.
30 www.eci.gov.in 31

www.nationalelectionwatch.org
Page | 2

NEW has looked at affidavits of 533 declared winners (MPs) for the Lok Sabha 2009 out of 541 declared results so far. Affidavits of 8 new MPs (all from Tamil Nadu) are not available on Election commission’s website and about 10 affidavits have not been properly scanned and uploaded. Unclear details in them have not been taken into account. We have requested the Electoral office of each state to have these affidavits re-scanned and be put on the website, so that general public can access this information.

MPs with criminal records Total Criminal cases MPs with serious criminal records

2004 128 429 55

2009 150 412 72

Increase % increase 22 17.2% -17 17 -4% 30.9%

Table.1

Fig.1

Fig.2

Page | 1

Fig.3 The maximum criminal charges are against INC’s Gujarat’s MP VITTHALBHAI HANSRAJBHAI RADADIYA. He has a total of 16 cases out of which 5 cases are of serious nature. The maximum no of serious IPC charges are against Jadish Sharma JD (U). The top 10 list of MPs with serious criminal charges is given below32. SerialName State/Dist Serious Constituency Party Age IPC Counts No of Cases in which Accused 6 10 No. of Cases in Total which Convicte d 0 0 6 10

1 2

Jadish Sharma BAL KUMAR PATEL PRABHAT SINH PRATAPSI NH KAPIL MUNI KARWA RIYA P.Karunakaran Lalu Prasad KUNVARJI BHAI MOHANBH AI BAVALIYA VITTHAL BHAI HANSRAJ BHAI RADADIY A FEROZE VARUN GANDHI

BIHAR UTTAR PRADES H

Jahanabad Mirzapur

JD(U) 58 17 SP 48 13

3 4 5 6 7

GUJARAT Panchmahal BJP UTTAR PRADES H KERALA BIHAR Phulpur Kasaragod Saran BSP

67 10 42 8

3 4 12 2 2

0 0 0 0 0

3 4 12 2 2

CPM 64 6 RJD INC 60 6 54 6

GUJARAT Rajkot

8

GUJARAT Porbandar

INC

51 5

16

0

16

9

UTTAR PRADES H

Pilibhit

BJP

29 5

6

0

6

32

www.nationalelectionwatch.org
Page | 1

10

CHANDRAKAN GUJARAT Navsari T RAGHUNATH PATIL Table.2

BJP

54 5

6

0

6

Fig.4

Party BJP INC SP SHS JD(U) BSP BJD AITC NCP

Total MPs 116 202 22 11 20 21 14 19 9

MPs with Criminal 42 41 8 8 7 6 4 4 4

Percentage of MPs with Criminal 36.21 20.30 36.36 72.73 35.00 28.57 28.57 21.05 44.44

MPs with SeriousPercentage of MPs with Criminal Serious Criminal Charges 19 16.38 12 7 3 3 6 1 4 3 5.94 31.82 27.27 15.00 28.57 7.14 21.05 33.33

MPs with criminal background party wise: 33
33

www.nationalelectionwatch.org

Page | 2

DMK RJD CPM ADMK RLD JD(S) TDP JVM VCK AIMIM SAD IND JMM TRS AIFB Total

16 4 15 7 5 3 6 1 1 1 4 9 2 2 2 533

3 3 3 3 2 2 2 1 1 1 1 1 1 1 1 150

18.75 75.00 20.00 42.86 40.00 66.67 33.33 100.00 100.00 100.00 25.00 11.11 50.00 50.00 50.00 28.14%

1 2 1 3 1 1 1 0 1 1 0 0 1 0 1 72

6.25 50.00 6.67 42.86 20.00 33.33 16.67 0.00 100.00 100.00 0.00 0.00 50.00 0.00 50.00 13.51%

Table.3

Fig.5

Page | 2

MPs with criminal background state wise: 34 Total MPs with MPs Criminal Charges MPs with Percentage of MPs Serious with Criminal Criminal Charges Charges Of Total Mps of the concerned state 37.97 47.92 42.50 26.19 42.31 32.14 16.67 22.58 42.86 30.00 23.81 13.79 15.38 18.18 8.33 20.00 16.67 14.29 100.00 100.00 7.14 20.00 28.14% 21 9 6 3 7 5 7 5 1 2 2 2 1 0 0 1 0 0 0 0 0 0 72 Percentage of MPs with Serious Criminal Charges 26.58 18.75 15.00 7.14 26.92 17.86 16.67 16.13 7.14 10.00 9.52 6.90 7.69 0.00 0.00 10.00 0.00 0.00 0.00 0.00 0.00 0.00 13.51%

State

UTTAR PRADESH 79 MAHARASHTRA 48 BIHAR 40 ANDHRA 42 GUJARAT 26 KARNATAKA 28 WEST BENGAL 42 TAMIL NADU 31 JHARKHAND 14 KERALA 20 ORISSA 21 MADHYA 29 PUNJAB 13 CHHATTISGARH 11 RAJASTHAN 24 HARYANA 10 JAMMU & 6 KASHMIR NATIONAL 7 CAPITAL TERRITORY OF DADRA & 1 NAGAR ANDAMAN & 1 NICOBAR ISLANDS ASSAM 14 UTTARAKHAND 5 Total 533

30 23 17 11 11 9 7 7 6 6 5 4 2 2 2 2 1 1 1 1 1 1 150

Table.4

34

www.adrindia.org

Page | 1

Fig.6

Crorepati MPs who have criminal records and have not declared their PAN details– 35

35 www.adrindia.org

Page | 1

Serial

Name

State/Dist
UTTAR PRADESH

Constituency

Party

Age

Serious IPC Counts

No of Cases in which Accused

No.of Cases in which convicte d

Total cases

RAJKUMARI 1 RATNA SINGH ANGADI 2 SURESH CHANNABASAP PA 3 TAMBIDURAI.M

PRATAPGARH

INC

49

3

6

0

6

KARNATAKA

BELGAUM

BJP

55

1

2

0

2

TAMIL NADU

KARUR

ADMK

62

1

2

0

2

4 JAGDAMBIKA PAL

UTTAR PRADESH

DOMARIYAGA NJ

INC

59

0

1

0

1

5 SUSHIL KUMAR SINGH

BIHAR

AURANGABAD

JD(U)

43

2

4

0

4

6 P.KARUNAKAR AN

KERALA

KASARAGOD

CPM

64

6

12

0

12

7 HARSH VARDHAN 8 VINAY KUMAR ALIAS VINNU

UTTAR PRADESH

MAHARAJGAN J

INC

61

0

3

0

3

UTTAR PRADESH

SHRAWASTI

INC

45

4

9

0

9

Table.5

Page | 1

Table.6

MPs with criminal background: There are 150 newly elected MPs with criminal cases pending against them. Out of these, there are 73 MPs having serious charges against them. Here is the high level summary of the new Lok Sabha: • • • • • Affidavits available for MPs - 533 MPs with criminal charges - 150 (28.14 %) MPs with serious criminal charges - 72 (13.51 %) Total criminal cases against MPs - 412 Total serious IPC sections against MPs – 213

As compared to 2004, the no of MPs with criminal records has gone up. There were 128 MPs with criminal cases in 2004 Lok Sabha out of which 55 had serious criminal records. There is an increase of about 17.2% in MPs with criminal records and 30.9% increase in the number of MPs with serious criminal records. MPs with criminal background party wise: BJP has maximum MPs having criminal cases – 42 MPs have criminal cases against them, out of which 17 MPs have serious criminal cases against them. It has followed by congress – 41 MPs with criminal cases out of which 12 MPs have serious charges against them. SP has 8 MPs with criminal cases out of which 7 has serious charges, followed by Shivsena which has 8 MPs with criminal charges out of which 3 have serious charges. MPs with criminal background state wise:
Page | 2

Amongst the states, UP has maximum MPs with criminal cases (total of 31 out of which 22 have serious charges against them). Maharashtra is second with 23 MPs having criminal cases out of which 9 have serious cases against them. It is followed by Bihar, Andhra Pradesh and Gujarat. The full details of all states are given in the table below: Criminal Record, Crorepati and No PAN Out of 25 Crorepati MPs who have not declared their PAN, 8 have criminal cases against them. There are 17 serious IPC charges against them including attempt to murder, robbery, dacoity and forgery. 2 Crorepati MPs have attempt to murder charges against them.- Ratna Singh INC MP from Pratapgarh (2 attempts to murder charges) and Vinay Kumar INC MP from Shrawasti, UP (3 murder charges). There are some cases in which Supreme Court has given its verdict on criminal case.

Page | 2

CHAPTER 6 - JUDICIAL REVIEWS

1.

SUPREME COURT OF INDIA Civil Appeal No. 7178 of 2001

Page | 1

Union of India................................................................................ Appellant Versus Association for Democratic Reforms & other ..........................Respondent With Writ Petition (C) No. 294 of 2001 People’s Union for Civil Liberties (PUCI) & other .....................Petitioners Versus Union of India & other ..............................................................Respondents Date of Order: 02.05.2002 SUMMARY OF THE CASE The Association for Democratic Reforms had filed a writ petition No 7257 of 1994 before High Court of Delhi for direction to implement the recommendations made by Law Commission in its 170th report and to make necessary changes under Rule 4 of Conduct of Elections Rules, 1961 regarding debarring a candidate from contesting election if charges have been framed against him/her by a Court in respect of certain offences and necessity for candidate to furnish details of criminal cases, if any, pending against him. It also suggested that true and correct statement of assets owned by the candidate should also be disclosed. The petitioners pointed out nexus between criminals and candidates as highlighted in Vohra Committee report36. The petitioners sought direction from High Court to Election Commission to seek above information amending Forms 2A & 2E required at the time of filing nomination by candidates.

The High Court observed that it is for Parliament to amend R. P. Act, 1951 but Election Commission should secure above said information for voters. The High Court’s order was challenged by Union of India with a plea that High Court
36 N.N. Vohra committee formed in October 1993

Page | 2

should have directed petitioner to approach Parliament for necessary changes. The PUCL also filed petition No. 294/2001 under article 32 of Constitution of India for above mentioned guidelines under Article 141 of Constitution of India. The issue before Hon’ble Supreme Court was whether Election Commission is empowered to issue directions as ordered by High Court and whether a citizen has right to get relevant information about prospective candidates. The Supreme Court held that High Court has ample jurisdiction under Article 32 read with Articles 141 and 142 of Constitution of India to issue necessary direction to executive to sub serve public interest, to fill the void in absence of suitable legislation. The Supreme Court relied upon Vineet Narain and Others Vs. Union of India and Another (1998, SCC 226) case.

2.

SUPREME COURT OF INDIA

Page | 3

CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 490 OF 2002 People’s Union for Civil Liberties (PUCL) & other .................... Petitioners Vs. Union of India and other ............................................................ Respondents WITH WRIT PETITION (CIVIL) NO. 509 OF 2002 Lok Satta and Others ................................................................... Petitioners Vs. Union of India ................................................................................ AND WRIT PETITION (CIVIL) NO. 515 OF 2002 Association for Democratic Reforms ........................................... Petitioner Vs. Union of India and other ............................................................ Respondents Respondent

Date of Order : 13.03.2003 SUMMARY OF THE CASE Three writ petitions under Article 32 of the Constitution of India were filed Challenging the validity of the Representation of People (Amendment) Ordinance, 2002. During the pendency of petitions, the Ordinance was repealed and the Representation of the People (3rd amendment) Act, 2002 was notified. Section 33A of amended Act provides that a candidate shall furnish certain information mentioned therein. Section 33B (ibid) provides that candidate to furnish information only under the Act and the Rules made there under. It was
Page | 1

contended that some of the directions which were issued by Supreme Court in Association for Democratic Reforms case have been incorporated in amended Act but with regard to remaining directions, it has been provided therein that no candidate shall be liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Act and Rules made there under. Therefore the provisions of Section 33B (ibid) were challenged. The Court held that:
(a) Legislature is entitled to change the law with retrospective effect which

forms the basis of a judicial decision but this exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right.
(b) Amended Act does not wholly cover the directions issued by the Court. On

the contrary, it provides that candidate would not be bound to furnish certain information as directed by the Supreme Court.
(c) The judgement rendered in Association for Democratic Reforms has attained

finality and therefore there is no question of interpreting constitutional provision.
(d) Right to vote would be meaningless unless the citizens are well informed

about the antecedents of a candidate. The amended law is deficient in ensuring free and fair elections.
(e) The attempt of the Court should be to expand the reach and ambit of the

fundamental rights by process of judicial interpretation and it has been done by this Court consistently. In result, section 33-B37 of the Amended Act held to be illegal, null and void and petitions disposed of accordingly.

37

The Representation Of The People (3rd Amendment) Act, 2002

Page | 2

3.

SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 8213 of 2001

K. Prabhakaran ............................................................................. Appellant Vs. P. Jayarajan. .................................................................................. Respondent Civil Appeal No. 6691 of 2002 Ramesh Singh Dalal ..................................................................... Appellant Vs. Nafe Singh & Ors. . ...................................................................... Respondents Date of Order : 11.01.2005 SUMMARY OF THE CASE This is a Constitution Bench Judgement involving interpretation of Sections 8 (3) and 8 (4) of the Representation of the People Act 1951. Two appeals have been disposed of by this judgment. In CA 8213/2001, the issue was whether in the case of conviction for different offences at a common trial with sentences of imprisonment for different periods to be undergone consecutively, disqualification under Subsection (2) and (3) of Section 8 of the Representation of the People Act would be attracted if the total term of imprisonment exceeds the period mentioned in the said

Page | 2

Sub-sections. In C.A. 6691/2002 the question was whether the benefit of protection from disqualification under Sub-section (4) of Section 8 would be available for contesting any future election. In both the appeals there was also the question whether in the case of a person disqualified from contesting under Section 8, on account of conviction, the judgment of the appellate Court on a date subsequent to the date of election having a bearing on the conviction ordered by the trial court, would have the effect of wiping out disqualification from a back date. The Supreme Court held that the words ‘any offence’ used in Sub-section(3) of Section 8, refers to nature of offence and not the number of offences, and that it is immaterial whether the sentence awarded is in respect of one offence or more than one. Accordingly, in a majority judgment, it was held that in the case of conviction in a common trial for various offences with sentences of imprisonment of various period ordered to run consecutively, the different periods shall be added up, and if the total period on such adding up, is 2 years or more, disqualification provision under subsection (3) of Section 8 is attracted. On the other two issues, the judgment was unanimous. It was held that the protection under sub-section (4) of Section 8 would be available only for protecting the membership in the House of which the convicted person was a member on the date of conviction and not for protecting against disqualification for contesting future elections. On the third issue, it was held that for the purposes of Section 100 (1) (d) (i), the question of qualification or disqualification of a candidate shall be determined with reference to the date on which he was declared elected, and that the crucial date for determining the question whether a nomination was improperly accepted by the Returning Officer, is the date of scrutiny of nominations. It was held that a decision of a subsequent date, in an appeal against conviction would not have the effect of wiping out disqualification that existed on the focal dates of date of election and date of scrutiny. In both the cases, the decisions given by the High Courts dismissing the Election Petitions were set aside.

Page | 2

JUDGEMENT R.C. LAHOTI, CJI (FOR SELF AND ON BEHALF OF HON. SHIVARAJ V. PATIL, B.N. SRIKRISHNA AND G.P. MATHUR, JJ.) Facts in C.A. No. 8213/2001 Election to the No. 14 Kuthuparamba Assembly constituency was held in the months of April-May, 2001. There were three candidates, including the appellant K. Prabhakaran and the respondent P. Jayarajan contesting the election. Nominations were filed on 24.4.2001. The poll was held on 10.5.2001. The result of the election was declared on 13.5.2001. The respondent was declared as elected. In connection with an incident dated 9.12.1991, the respondent was facing trial charged with several offences. On 9.4.1997, the judicial Magistrate First Class, Kuthuparamba held the respondent guilty of the offences and sentenced him to undergo imprisonment as under:

Offences Under Section 143 read with Section 149 IPC Under Section 148 read with Section 149 IPC Under Section 447 read with Section 149 IPC

Sentence R.I. for a period of one month R.I. for six months R.I. for one month

Page | 4

Under Section 353 read with Section 149 IPC Under Section 427 read with Section 149 IPC Under Section 3(2)(e) under the P.D.P.P. Act read with Section 149 IPC

R.I. for six month R.I. for three months R.I. for one year

The sentences were directed to run consecutively (and not concurrently). Thus the respondent was sentenced to undergo imprisonment for a total period of 2 years and 5 months. On 24.4.1997, the respondent filed Criminal Appeal No. 118/1997 before the Sessions Court, Thalassery. In exercise of the power conferred by Section 389 of the Code of Criminal Procedure, 1973 (hereinafter ‘The Code’ for short) the Sessions Court directed the execution of the sentence of imprisonment to be suspended and the respondent to be released on bail during the hearing of the appeal.

Page | 3

4.

SUPREME COURT OF INDIA A.I.R 1964 ORISSA 1, RAJ DEV VS GANGADHAR

JUDGEMENT OF THE CASE

In Raj Dev v.Gangadhar.2 a candidate professed that he was Chlanti Vishnu and
representative of Lord Jagannath himself and that anyone does not vote for him

would be sinner against the Lord and the Hindu religion. It was held that this kind of propaganda would amount to an offence under section 171-F read with section 171-C.

Page | 3

5.

SUPREME COURT OF INDIA A.I.R 1997, SC 2814, ORISSA 1, ANKUL CHANDRA PRADHAN VS STATE OF ORISSA

JUDGEMENT OF THE CASE In this case it has been held the rights to vote is a statutory right and therefore subject to the limitations imposed by the state which can be exercised only in the manner provided by the statute. It is neither a fundamental right nor a common law right. It is pure and simple, a statutory right. Accordingly, Section 5 of the Representation of the People’s Act,1951 which debars a person to vote in an election if he is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or in lawful custody of police, but not under prevention, detention, is not discrimination and is not violative of Article 14 of the Constitution.

Page | 3

Page | 3

CHAPTER 7 -CONCLUSION

Page | 1

7.1 APPRAISAL, RECOMMENDATIONS AND SUGGESTIONS Conclusion
The criminalisation of politics continues to be a very big concern, with an increase in the number of MPs with criminal records in 2004 from 128 to 150 in 2009. Even the number of MPs with serious criminal cases has gone up. The biggest reason for this seems to be the undemocratic and autocratic selection and nomination of candidates by political parties. In order to ensure the win ability of candidates, parties ignored honesty to give preference to muscle power and money power. As media reports seem to indicate, the misuse of monetary incentives to buy votes has increased sharply since last elections and continues to be a source of threat to real democracy. While voter awareness on this issue is very high, the problem is that those who win after spending huge amounts are unlikely to focus on good governance. They are more likely to focus on recovering the funds they spent and on giving favors to those who supported their campaigns.

Not only the new government must tackle these issues on a priority basis and include them in their agenda but it’s very important on people’s part to be aware of not voting for the wrong person and be a part of ‘No to Criminals in Politics’ Further, after discussing HYPOTHESIS 1- under chapters 1, 4, 5, it appears that the hypothesis 1 has been fully proved to be true, that crime in politics has been rising due to the fearlessness of law and it has proved to be a shortcut to name, fame, power and money. In HYPOTHESIS 2- discussed under chapters 1, 3,4,5, it appears that it has been partially proved to be true ,that electoral reforms in India has been able to control and regulate the election processes through the electoral laws .it has helped to some

Page | 2

extent in curbing the criminal and corruption activities taking place at the time of elections .

Recommendations to Curb Criminalisation of Politics
Promoting Intra – Party Democracy and Transparency – Whether by design or by omission, our Constitution does not provide for the constitution and working of the political parties, though they are at the heart of a parliamentary democracy. A parliamentary democracy without political parties is inconceivable. Yet the Constitution (except the Tenth Schedule which was inserted only in the year 1985) does not even speak of political parties whereas article 21 of the German Constitution (Basic Law for the Federal Republic of Germany, 1949), which Constitution was also enacted almost simultaneously with our Constitution, provides for the establishment and working of the political parties. The Article reads thus: Article 21 (Parties) (1) the parties shall help form the political will of the people. They may be freely established. Their internal organisation shall conform to democratic principles. They shall publicly account for the sources and use of their funds and for their assets. Thus if the party doesn’t allow candidates with criminal records to contest in the election just imagine, how fair and free would be the democratic process in India. Fast Track Courts for Politicians with Criminal Records – Many criminals are just allowed to contest in the elections just because they are not convicted and under the trial of court. This practice can be avoided if special arrangements are made for speedy trial of the politicians with criminal records. Because it needs to be understood that such people should not be allowed to sit in the highly esteemed house of parliament, which decides the fate of the country. Stricter Laws – Stricter laws need to be implemented to prevent criminals from contesting the election. And once convicted he must be barred from contesting any
Page | 2

election for the next 10 years or so. Plus parties with more no. of criminals must be blacklisted and disciplinary action must be taken.

Disclosure of criminal antecedents of candidates Currently, Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate must file an affidavit (Form 26 appended to Conduct of Election Rules, 1961) regarding (i) cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii) cases of conviction for an offence other than any of the offences mentioned in Section 8 of Representation of the People Act, 1951, and sentenced to imprisonment for one year or more. In addition to this, pursuant to the order of the Supreme Court the Election Commission on March 27, 2003, has issued an order that candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications. The affidavit is given in a form prescribed by the Election Commission of India. Section 125A of the R.P. Act, 1951 prescribes penalties for withholding or providing incorrect information on Form 26, which amount to imprisonment of up to six months, or fine, or both. In its report entitled Proposed Electoral Reforms, 2004 the Election Commission of India notes that “in some cases, the candidates leave some of the columns blank…there have been cases where candidates are alleged to have given grossly undervalued information.”  Recommendations In its report on Proposed Election Reforms, 2004, the Election Commission of India recommended that an amendment should be made to Section 125A of the R.P. Act, 1951 to provide for more stringent punishment for concealing or

Page | 2

providing wrong information on Form 26 of Conduct of Election Rules, 1961 to minimum two years imprisonment and removing the alternative punishment of assessing a fine upon the candidate. It also recommended that Form 26 be amended to include all items from the additional affidavit prescribed by the Election Commission, add a column requiring candidates to disclose their annual declared income for tax purpose as well as their profession. The Law Commission of India Report on Reform of the Electoral Laws, 1999, suggested that an amendment be made to the Representation of the People Act, 1951, to insert a new section 4A after section 4 to make declaration of assets and criminal cases pending against the candidate part of the qualifications necessary for membership to the House of the People. Eligibility of candidates with criminal cases pending against them Section 8 of the Representation of the People Act, 1951, provides for disqualification of candidates from contesting an election on conviction by a Court of Law. In subsection (1), it lists certain crimes and stipulates a disqualification period of six years from the date of conviction. In subsection (2) it lists a different set of crimes and provides for the candidate to be disqualified from the date of conviction and for a period of six years since his release. In subsection (3), it provides that any candidate convicted for a crime for which the minimum imprisonment is two years shall also be disqualified from the date of conviction and will continue to be disqualified for six additional years after his release.  Recommendations The Election Commission proposed in its 2004 report that Section 8 of the Representation of the People Act, 1951 should be amended to disqualify candidates accused of an offence punishable by imprisonment of 5 years or more even when trial is pending, given that the Court has framed charges against the person. In the report the Commission addresses the possibility that such a provision could be misused in the form of motivated cases by the ruling party. To prevent such misuse, the Commission suggested a compromise whereas only
Page | 2

cases filed prior to six months before an election would lead to disqualification of a candidate. In addition, the Commission proposed that Candidates found guilty by a Commission of Enquiry should stand disqualified. The report “Ethics in Governance” of the Second Administrative Reforms concurred with the recommendation of the Election Commission. In Chapter 4 of its report, the National Commission to Review the Working of the Constitution proposed several measures. Firstly, it proposed that Section 8 of the Representation of the People Act, 1951, be amended such that a candidate accused of an offence punishable by imprisonment of 5 years or more be disqualified on the expiry of a period of one year from the date the charges were framed against him, and unless cleared during that one year period, he shall remain disqualified until the conclusion of his trial. It also recommended that in case a candidate is convicted by a court of law and sentenced to imprisonment of six months or more, he shall be disqualified during the period of the sentence and for six additional years after his release. Candidates violating this provision should be disqualified and political parties putting up such a candidate with knowledge of his antecedents should be derecognised and deregistered. Thirdly, the Commission has stated that any person convicted for any heinous crime such as murder, rape, smuggling, dacoity, etc., should be permanently barred from contesting political office. Finally, the Commission proposes the establishment of Special Courts to decide cases against candidates within a period of six months or less. Potential candidates against whom charges are pending may take the matter to the Special Court, which can decide if there is indeed a prima facie case justifying the framing of the charges. Special Courts would be constituted at the level of High Courts and decisions would be appealable only to the Supreme Court. The 1999 Law Commission of India Report takes a separate stand, suggesting that Section 8 remain unchanged. It suggests, however, the addition of a new section – Section 8B, which would provide a separate set of penalties for electoral offences and offences having a bearing upon the conduct of elections under sections 153A and 505 IPC and serious offences punishable with death or life imprisonment. The proposed Section 8B would provide that framing of charges shall be a ground of disqualification but this disqualification shall last only for
Page | 2

a period of five years or till the acquittal of the person of those charges, whichever event happens earlier. Negative or Neutral Voting38 The criminalisation of politics, widespread corruption in the system, and use of violence, voter intimidation, etc may result in there being no desirable candidates within those contesting elections in a particular constituency. Currently there is no way for voters to express their dislike for all candidates. The lack of such a provision may further contribute to the decay in the system in such cases by encouraging only those voters who support such compromised candidates to vote, returning those same leaders to power again and again.  Recommendations Both the Election Commission and Law Commission of India recommend that a negative or neutral voting option be created. Negative/neutral voting means allowing voters to reject all of the candidates on the ballot by selection of a “none of the above” option instead of the name of a candidate on the ballot. In such a system there could be a provision whereas if a certain percentage of the vote is negative/neutral, then the election results could be nullified and a new election conducted. The Ministry of Law and Justice has prepared a table reviewing progress made on the recommendations suggested by the Election Commission in 2004. In July, 2004, the Election Commission has sent a set of 22 proposals on Electoral Reforms. Further, the entire matter of electoral reforms was referred to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination by the Chairman, Rajya Sabha in the year, 2005. Out of 22 proposals the Hon’ble Standing Committee gave its recommendations on six proposals including criminalisation of politics. The Department has taken
38 (A petition by the People’s Union for Civil Liberties seeking such a provision filed at the time of the
recent general elections is pending before the Hon.ble Supreme Court)

If a candidate is found guilty they would

automatically be disqualified under Section 8.

Page | 3

initiative and relevant provisions of the Representation of the People Act, 1950 and Representation of the People Act, 1951 have been amended to provide for (1) Appointment of Appellate Authority in districts against orders of Electoral Registration Officers; (2) to increase the security deposit of candidates; (3) Exit Polls; (4) All officials appointed in connection with conduct of elections to be included in clause (7) of section 123; and (5) Simplification of procedure for disqualification of a person found guilty of corrupt practice. The Hon’ble Standing Committee did not favour the proposal on carrying out any amendment relating to the Criminalisation of politics.

Page | 2

Brief details of each of the proposal and remarks thereon are as under39:-

Sl. No. Proposal of the Election Commission 1. Affidavits to be Filed by Candidates on Criminal Antecedents, Assets, etc.

Status/Remarks. This relates to the merger of two affidavits filed by a candidate one in terms of section 33A of the Representation of the People Act, 1951, read with rule 4A of the Conduct of Election Rules, 1961(in Form 26) and another in the format prescribed by the Commission vide its order dated 27.3.2003, in pursuance of the Hon’ble Supreme Court’s judgment dated 13.3.2003 in Civil Appeal No. 490 of 2002 (Peoples Union for Civil Liberties & Another Vs. Union of India).

2.

Need to Increase the Security Deposit of Candidates

Enacted vide Representation of the People (Amendment) Act, 2009 (Act 41 of 2009). The Government had requested the

3.

Criminalisation of Politics This proposal relates to disqualify any persons accused of an offence punishable by imprisonment for five years or more, from contesting elections even when trial is pending, provided charges have been framed against him by a competent court.

Parliamentary Standing Committee to give its recommendations on the proposal of the Election Commission of India. The Committee in its Eighteenth Report on the subject inter alia disagreed with the aforesaid proposal as it is a major departure from the law of the land that a person is not guilty until he is convicted by the highest court of the land. The Committee, however, recommended that proclaimed absconders under section 82 of the Criminal Procedure

39 www.eci.gov.in

Page | 3

Code be disqualified from contesting polls. 4. Restriction on the Number of Seats from In the all party meeting held on 22.5.1998, which One May Contest This proposal is to amend the law to provide that a person cannot contest from more than one constituency at a time or if the present provision is retained then there should be a provision which would mandate to deposit a definite sum in case a person get elected from both seats. 5. Exit Polls and Opinion Polls40 Enacted vide Representation of the People (Amendment) Act, 2009 (Act 41 of 2009) putting a restriction on publication and dissemination of results of exit polls. Restriction of opinion polls needs to be examined. it was decided to retain the present provision of allowing a person to contest from two constituencies of same nature.

40 (A Writ Petition (Civil) No.207 of 2004. Shri D.K. Thakur Vs. Union of India & Others seeking
prohibition on Exit Polls / Opinion Polls is pending before the Hon.ble Supreme Court)

Page | 4

.6

Prohibition of Surrogate Advertisements Section 127A deals only with publication in Print Media. Section 127A of the Representation of the People Act, 1951 may be suitably amended, adding a new sub-section (2A) to the effect that in the case of any advertisements / election matter for or against any political party or candidate in print media, during the election period, the name and address of the publisher should be given along with the matter / advertisement. Sub-section (4) should also be suitably amended to include in its ambit the new proposed sub-section. of pamphlets, posters, etc., but does not include advertisement in newspapers. The said section can be amended so as to include advertisement in print media also. However, to the the Ministry matter of of regulating and advertisements in the print media pertains Information Broadcasting and Press Council of India and the proposal can be considered on the basis of inputs from them.

7.

Negative / Neutral Voting41

The Committee on Electoral Reforms (Dinesh Goswami Committee) did not favour it and was of the view that it does not serve any purpose.

8.

Appointment of Appellate Authority in Enacted vide Representation of the People Districts against Orders of Electoral (Amendment) Act, 2009 (Act 41 of 2009). Registration Officers

9.

Compulsory Maintenance of Accounts by Political Parties and Audit thereof.

The Election and Other Related Laws (Amendment) Bill, 2002 (introduced in Lok Sabha on 19th March, 2002) sought to introduce section 29D in the Representation of the People Act, 1951 in

41 (A petition by the People’s Union for Civil Liberties seeking such a provision filed at the time of the
recent general elections is pending before the Hon.ble Supreme Court)

Page | 5

this

regard.

The

Department-Related

Parliamentary Standing Committee on Home Affairs while examining the matter desired that the audit of accounts of donation received by the political party may be done through Chartered Accountants appointed by it as at present, as per the provisions of the Income-tax Act (section 13A). In view thereof the Committee recommended deletion of entire section 29D in clause 2 of the Bill. 10. Government Sponsored Advertisements. The proposal requires further examination. Advertisements on poverty alleviation and health related schemes could be exempted. The Commission proposes that where any general election is due on the expiration of the term of the House, advertisements of achievements of the governments, either Central or State, in any manner, should be prohibited for a period of six months prior to the date of expiry of the term of the House. 11. Political Advertisements on Television and Cable Network. The issue of advertisements on television and cable networks, led to a lot of confusion election. relevant 1994 to provisions provide of the for during the recent 1994, general prohibit The Cable Television Network Rules, Advertisements revealing information on matters of urgent public interest could also be exempted. Further, since advertisements could be prohibited from carrying the name of any political party or photographs of leaders and Ministers.

This relates to consider amending the (Regulation) Television Network (Regulation) Rules, suitable advertisement code and monitoring mechanism.

Cable advertisements of political nature. The matter pertains to the Ministry of Information and Broadcasting and that Ministry is able to judge the feasibility of evolving a suitable advertisement code and
Page | 6

monitoring mechanism for advertisement on television and cable networks in consultation of the Election Commission and Legislative Department. 12. Composition of Election Commission It was decided to include it as a proposal and Constitutional Protection of all for regional and national consultation. Members of the Commission for and the Independent Commission. 13. Expenses of Election Commission to be Treated as Charged. The proposal to make the expenses of the Election Commission of India ‘charged’ was considered by the Dinesh Goswami Committee but was not favoured. In 1994, the Government, however, introduced the Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 in Lok Sabha on 16.12.94 which lapsed on the dissolution of the Tenth Lok Sabha. The Department-Related Parliamentary Standing Committee on Home Affairs in its 24th Report on the said Bill presented to Rajya Sabha on 28.11.1995 and was of the considered view that there is no need of passing the proposed Bill and recommends that the Bill be dropped The Election Commission of India again made a similar proposal in 1997 which was placed before political parties in the all party meeting held on 22.5.1998 but no view was taken. Again, the Election Commission of India made the same
Page | 7

Secretariat

proposal in May, 2003 and on the direction of the then Hon’ble Prime Minister the same was placed before the political parties in the all party meeting held on 29.10.2003. The debate on the proposal remained inconclusive. 14. Ban on Transfers of Election Officers on This is to amend section 13CC of the the Eve of Elections Representation of the People Act, 1950, and section 28A of the Representation of the People Act, 1951 to provide that no transfer shall be made, without the concurrence of the Commission, of any officer referred to therein, as soon as a general election/bye-election becomes due in any Parliamentary or Assembly Constituencies. 15. All Officials Appointed in Connection with Conduct of Elections to be included in Clause (7) of Section 123. 16. Anti-Defection Law The question of disqualification of members on the grounds of defection should also be decided by the President and Governors, on the opinion of the Election Commission. 17. Use of Common Electoral Rolls at Elections Conducted by the Election Commission and the State Election Commissions The matter has been examined and decided to await the outcome of the discussion Commission this regard. between and the State Election Election No view has been taken. Enacted vide Representation of the People (Amendment) Act, 2009 (Act 41 of 2009).

Commissions to sort out the modalities in

Page | 8

18.

Simplification of Procedure for Disqualification of a Person Found Guilty of Corrupt Practice.

Enacted vide Representation of the People (Amendment) Act, 2009 (Act 41 of 2009).

19.

Same Number of Proposers for all It was decided to include it as a proposal Contesting Candidates -Amendment of for regional and national consultation. Section 33 of the Representation of the People Act, 1951

20.

Making of False Declaration in Connection with Election to be an Offence. Making of any false statement or declaration District before the Election Presiding Commission, Chief Electoral Officer, Election Officer, Officer or any authority appointed under the Representation of the People Act, 1951, in connection with any electoral matter should be made an electoral offence under the said Act.

The various legal provisions required to curb the wilful furnishing of incorrect information in electoral procedures to ensure the free and fair election are already there in the Election Laws. Further, keeping in view a large population of this country being illiterate, there would be frequent instances of furnishing incorrect information inadvertently or without any malafide intention by the common man while the process of preparation of electoral rolls, etc. and hence, the proposal may create the fear in the minds of people abstaining themselves from the democratic process of the country.

Page | 9

21.

Rule Making Authority to be Vested in Election Commission Making authority under the Representation of the People Act, 1950 and Representation of the People Act, 1951, should be conferred on the Election Commission, instead of however, be consulted by the Election Commission while framing any rule.

Rule making power has to be vested only with the Government since rules are in the nature of subordinate legislation, the making of it shall be only with the Government which is answerable to Parliament. Rules are required to be laid nullified if the Houses of Parliament resolve to do so. If rules were to be made by the Election Commission then amendment or modification by Parliament may lead to controversy.

on the Central Government, who should, before Parliament and can be modified and

22.

Registration and De-registration of Political Parties - Strengthening of Existing Provisions Under the existing section 29A of the Representation of the introduced authorising the Election Commission to issue necessary orders regulating registration and deregistration of political parties.

In view the growing number of political parties registered with the Election Commission for perpetuity availing all the facilities like, tax exemption, political fund political parties regularly contest elections being limited to certain number of registered political parties, it is worthwhile to consider the proposal of the Election Commission.

People Act, 1951, another clause may be contributions, whereas the number of

Page | 10

In addition to the aforesaid 22 proposals the Election Commission of India has made, the Ministry of Law has a certain other proposals on electoral reforms, which are as under:(1) Election Expenditure in respect of the Under section 77 and 78 of the R.P. Act, Teachers and Graduates constituencies:1951 every candidate in the election to the Lok Sabha and the Legislative Assemblies of State/UTs is required to maintain correct account of expenditure incurred/authorized in connection with his election and to lodge it with the DEO within the 30 days of election, whereas rule 90 of the Conduct of Elections Rules 1961 has prescribed a ceiling for expenditure that can be incurred in connection with these elections. However, there is no such provision under election laws requiring maintaining or lodging the account of election expenses or prescribing any ceiling of expenditure in the case of elections to the Council of States and the State Legislative Council.

The Election Commission is of the view that in the interest of free and fair election, there is urgent need to bring the elections to the Legislative Councils from the Teachers and Graduates’ constituencies within the ambit of section 77 and 78 of the RP Act, 1951 and also prescribing a ceiling of expenditure that can be incurred/ authorized in these elections. (2)Amendment to the Conduct of Election No view has been taken. Rules, 1961 to provide for use of Totaliser
Page | 1

for counting of Votes recorded in EVMs. (3) Restoration of Cycle of Rajya Sabha and Legislative Council:Under article 80 and 171 of the

Constitution every second year as nearly as possible one-third member of the Council of State and Legislative Council shall retire every second year. Due to non availability of the Legislative Assembly in certain States/Union Territory for continuous years, the cycle of the Rajya Sabha could not be maintained and eventually all the Members of the Council of States from that States get elected for a period of Six years. A similar situation is being faced in the case of Legislative Council in respect of the States of Bihar, U.P., Karnataka etc., due to non availability of Local Bodies, Assemblies for longer periods. In this regard it may be submitted that the Election Commission has suggested some methods to be adopted to sort out these eventualities in future. The Ld. Attorney General for India is of the view that the sanctity of the provisions of the Constitution may be maintained and the cycle of retirement of the Members of Rajya Sabha and should be restored. Legislative Council

(4)

Appointment

of

Chief

Election One of the Chief Election Commissioners

Commissioner (CEC) and other Election has requested the Government to have a Commissioners (EC) and consequential collegium consisting of the Prime Minister matter:and Leader of Opposition etc. who is empowered to make recommendations for
Page | 1

appointments of the CEC and ECs. Further, it has also been suggested that there should be complete ban for ten years after retirement from the post of CEC to any political post.

Page | 2

CHAPTER 8- BIBLIOGRAPHY

Page | 1

BIBLIOGRAPHY
➢ Bartol Curt R. (2001). Criminal behaviour – A Psychological Approach,

fifth edition, Prentice Hall Inc. ➢ Election Laws of India – Chawla’s

➢ REFORM OF THE ELECTORAL LAWS (Report No. 170) [1999] INLC
170 (1 May 1999), Law Commission of India Reports.

➢ Representation of the People’s Act, 1951
➢ National Election Watch, Lok Sabha Analysis,

http://nationalelectionwatch.org/files/new/pdfs/Lok%20Sabha%20high %20level%20analysis.pdf
➢ National Election Watch, Post – Election Analysis, http://www.domain-

b.com/economy/general/post_election.pdf ➢ P. M. Bakshi (2009).The Constitution of India, Universal Law Publications.
➢ http://www.manupatra.com. ➢ http://www.google.com

Page | 3

➢ www.eci.gov.in.

➢ www.adrindia.org.

Page | 1

Sign up to vote on this title
UsefulNot useful