No one can be held guilty unless proven to be so…

Bibhu Mohapatra, Fellow, India Development Foundation.

In August 1997, G.V.G. Krishnamurthy, the then Election Commissioner, called

for legislation and administrative measures to curb criminalisation of politics. He
disclosed that in the 1996 general elections, the Commission had seized illegal
arms which included 2,000 guns, 11,000 cartridges, 175 explosives and 57,000
bombs; and of the 13,952 candidates, who contested, nearly 1,500 had criminal
records; and almost 700 MLAs in the country were involved in criminal cases and
trial was pending against them. In the last 5 years 1, out of 39,866 candidates
contesting various state and parliamentary elections, 3163 (7.9%) had pending
criminal charges against them. If we look at the figures of those who won in these
elections (4431), there were 977 (22.04%) who had pending criminal cases
against them. If we look at the figures of the assembly and parliamentary
elections separately, there were 34,431 candidates who fought various assembly
elections in these 5 years and 5435 fought in the parliamentary elections. Out of
the 543 members of the Lok Sabha 102 (18.78%) had pending criminal cases
against them. Out of 3888 assembly seats, 875 (22.5%) had pending criminal
cases against them.

In 2005 the Chief Election Commissioner of India had written to the Prime
Minister suggesting certain changes in the election laws so that people against
whom charges have been framed by a competent court, in cases attracting
sentences for 5 years or more could be barred from contesting elections. The
underlying assumption was that like any government servant, while the enquiry is
in progress, the person could remain under suspension and once cleared of
charges, s/he could get back to contesting elections.

The Prime Minister has also raised the issue on innumerable occasions
regarding what steps could be taken to curb the influx of criminals into politics. A
Parliamentary Standing Committee under EMS Nachiappan looked into the
recommendations of the Election Commission, and concluded that, it would be
violating the rights of citizens to bar them from contesting elections on the basis
of charge sheets framed by courts.

It is a fact that candidates with Criminal background do win the elections, people
do vote them to power, and sometimes such candidates do deliver the goods. It
is also well known that most people with criminal background find politics as an
ideal sanctuary from police. And most political parties willingly offer tickets to
them. The reason being that their guilt is not yet proven in a court of law. Then,
on what basis can we bar such people from holding responsible positions in the
country’s legislatures? Would it not be violating their rights as citizens of this
country?

1
Since 2003 when affidavits of the candidates became mandatory and are accessible on the EC web site.
The argument against criminalization of politics has been mainly based on three
premises. First, unless proven guilty, every one is to be presumed innocent;
second, according to the law a person’s right to vote and right to contest in an
election could be taken away under certain circumstances. It is specifically
mentioned that a person behind the bars cannot cast her votes but the law is
silent on the right of that person contesting an election. Third, politicians are
mostly victims of opposition wraths and often the charges against them are for
obstructing public servant from carrying out his duties or unlawful assembly etc.
Such cases, the politicians argue, are inevitable in public life and should not be
taken seriously.

On the other hand, it is worth considering whether we should accept people as

law makers who have charges framed against them by a competent court, that is,
where prima facie grounds to believe that this person may have committed the
crime exists. Second, if the law is explicit on one count and is silent about the
other, does it necessarily mean that it allows people with criminal records to
contest? What is the definition of an Elector? And what are the views of the
judiciary in this regard? Third, if these accusations are not to be taken seriously,
should it not apply to the common citizen of the country? Then what is the need
for having these sections enshrined in the IPC at all?

All major political parties are to be blamed in this case. They go by the yardstick
of “winnability” of the candidate, and caste, religion, crime records and money
power—all the known tyrannies of democracy—come into play while giving
tickets to such candidates. This is somehow substantiated by the fact that out of
405 candidates who had pending cases against them in the Lok Sabha elections,
102 (25.18%) won and among the 2758 candidates who had criminal background
in the assembly elections, 875 (31.73%) won. This means every fourth candidate
with a criminal record won in Lok Sabha and every third candidate in the
Assembly elections.

The recent elections to many state assemblies have attracted underworld dons
from the prison. Sixty odd elected representatives were found to be in prison
during the voting for the presidential elections. In the UP Assembly elections
people charge sheeted for murder, rape and dacoity were given tickets by
prominent political parties. Certainly there is some basis to the supposition that
political parties do consider such people as candidates who have an added
advantage because of their criminal antecedents.

Another reason for concern is the slow disposal rate of our Courts and the low
rate of conviction. Till the end of 2006, 71, 92451 cases were listed in various
high courts2 and out of these 59, 99200 (83.4%) were still awaiting trial. The

2
The High court figures are taken because the appeal cases in electoral matters are only taken up at this
level.
lower courts scenario is worse. This has somehow added on to the perception
that one could get away with any crime without punishment. Once convicted a
contestant could appeal in the Supreme Court and that itself would take a long
time. That is how many elected representatives have enjoyed full tenures without
being bothered about their criminal past. The repercussion on civil society is still
worse. No one hesitates to burn down a bus or vandalise public property to give
vent to their private, communal or sectarian grievances. The state could be held
at ransom by any disgruntled violent group.

Though there is much talk in the media about criminalization, it is not reflected in
the activity of our law makers. A search in Lok Sabha questions shows that since
5 May 2004 till 24 October 2008, the issue of electoral reforms has come up 34
times and criminalization of politics has figured only thrice. Does this mean that
our elected representatives are less concerned about the issue? Among our
elected representatives to the lower house, 102 have criminal records and are
being investigated for murder, rape, assault, cheating, extortion and robbery.
Twenty-nine have been accused of spouse abuse. Seven have been arrested for
fraud. Seventy-one cannot get credit or loans due to bad credit histories. Twenty-
one are current defendants in various lawsuits. There have been several
occasions when our representatives have been publicly exposed for accepting
bribe-- for asking questions in the house, for recommending local area
development funds for their constituencies and of course, for voting in favour of
the government.

We are on the brink of another series of elections. 6 states are in the process of
poll and the General elections are expected early next year. If we leave out
Jammu and Kashmir and Mizoram, the other four states reflect the same trend in
their preference for candidates with pending criminal charges. This time round
we have affidavits from 2003 Assembly elections to these states, which shows
how they voted the last time. It would be interesting to see how they do it this
time round. The question that can be asked is whether information about the
criminal background of the candidate has any effect on voting behaviour? Or
does this information have region or class or gender specific impact?

In the last assembly elections Chhattisgarh had 819 candidates out of which 87
(10.62%) had pending criminal cases against them. 14 out of this 87 actually
won. The BJP had 12 and the INC 2.

In Delhi, the total number of candidates were 817, out of which 71 (8.69%) had
pending cases. 19 out of these won, and the BJP and INC shared the honour
with 9 candidates each.

In Madhya Pradesh, there were 2171 candidates and 323 (14.88%) had pending
cases against them. 70 of these won. The BJP had 59 and the INC 6 such
candidates.
 In Rajasthan, the total number of candidates was 1541, out of which 146
(9.47%) had pending cases. 27 out of these won and here the BJP accounted for
22 and the INC, 2.

Overall if we look at the assemblies of these 4 states, in terms of MLAs who had
criminal cases against them, it would look more alarming than we thought.
Chhattisgarh had 14 out of 90 (15.56%); Delhi, 19 out of 70 (27.14%); Madhya
Pradesh, 70 out of 230 (30.43%) and Rajasthan, 27 out of 200 (13.50%). These
figures pertain to states which are not generally regarded as criminalized as UP
or Bihar.

Over the last five years there have been concerted efforts from civil society
groups to push forward information campaigns aimed at informing and
influencing decision of the voter. How far have these campaigns succeeded is
worth evaluating after these elections. In battling against criminalization of politics
several commissions and committees have recommended drastic changes in the
law. The judiciary has time and again pointed out the need for pro active
legislation. It is only the Political parties who have not participated in the process
of changing things. The loop holes in law have been amply used by every party
in contesting election, buying votes, engineering defections and especially
nominating candidates with criminal background to contest on their behalf. They
need to vouch for the integrity of their nominated candidates before election and
any moral turpitude should make the party answerable to law. There is definitely
a lack of political will to curb criminalization of politics. Shri Man Mohan Singh is
leading a coalition government and as has now become acceptable in our public
life, a little wink at the ethical premises in pursuit of power goes by the name of
prudence. He needs to address the crisis of confidence not only in the economic
arena but also in electoral politics, so that legitimacy of the government in power
is not further undermined.

In the midst of the last general elections, the Patna High Court had passed an
order that said, “…The law of the Legislature controls elections, the Constitution
of India does not provide all the rules of the game. But the rules of the game
have to be as strict as those of any game, which kicks up hysteria. It's like a leg
before wicket ruling, where you're neither bowled out nor caught out. Cover a
wicket and get a ball on your leg pads and you’re out. It’s not fair to cover a
wicket. Why is this rule of the game so strict? A fair opportunity must exist to get
the player out if he presents an occasion. It's a foul to cover a wicket. Criminality
is also a foul in elections. It is not a qualification. It is certainly a disqualification.”
Is anyone listening?