Criminalisation of Politics

CRIMINALISATION OF POLITICS AND
CRIMINALS AS CANDIDATES IN ELECTIONS

Justice Sri. D. J. Jagannadha Raju
Lokayukta, Andhra Pradesh

Criminalisation of Politics and Criminals as candidates in Elections has become a most relevant topic in the present day context in India. With General Elections round the corner, the topic is most relevant and of utmost importance. During the last three or four months several articles appeared in the Newspapers and several speeches were given by public men on the above topic. Recently directions were given by the Chief Election Commissioner on this particular topic. The immediate or proximate cause for this topic attracting the attention of the general public is the Vora Commission report which has clearly established the need for breaking the nexus between criminals and politicians.

The intelligentsia and the enlightened public are shocked at the increase of violence and criminal activity and hold in political parties. It is the general feeling of the general public that rowdy elements and goonda elements and men with a criminal ground are ruling the roost. Several public men and writers have emphasized the need for eliminating the criminals from political parties and elections, but nothing concrete has been achieved. On the other hand day by day, the criminalisation of politics is increasing. More and more criminals are now masquerading as politicians.

The Election Commission in recent times gave several directions which is nothing but a restatement of the existing law. It only clarified the legal position that existed and reiterated what the status (The Representation of Peoples Act) has said from 1951 onwards.

Under Article 327, the parliament alone is competent to enact the law relating to Elections. Accordingly, the Representation of Peoples Act was enacted. Under Article 324, which comes in Part-15, the Election Commission is given the duty and power of Superintendence, Direction and Control of Elections. Under this Article, the Election Commission has got the power to issue directions to control the process of Election. Article 324 has to be read in the light of the Constitutional Scheme and the Representation of Peoples Act. Although it operates in areas left unoccupied by legislation, the words Superintendence, Direction and Control as well as conduct of all elections are used in the broadest terms. One has to think of Articles 324, 327 and the Representation of Peoples Act as a self-­contained Code in itself and view them in a comprehensive sense. While giving directions under Article 324, it cannot defy or violate the law, nor can it act arbitrarily. The orders and directions issued by the Election Commission are subject to judicial review and they are also tested on the touch stones of the provisions of Representation of Peoples Act and the Constitution of India.

People may ask a question as to why the Election Commission did not speak about this or issue any directions when the Representation of Peoples Act was there in force from 1951 and Section 8 was part and parcel of the statute book. Unfortunately in this country there are many laws which are not implemented, which are mere dead­ letters on the statute book. For instance the Anti-Beggary Act, the Dowry Prohibition Act, the Law relating to prohibition of alienation of Tribal lands to non-Tribals. Earlier, Section 8 of the Representation of Peoples Act was not being implemented properly and strictly. The Election Commission right from 1951 had the power to disqualify convicted persons from contesting elections and it also had the power to disqualify people who had merely filed an appeal against conviction. For some reason or other, the Election Commission took the view that if an appeal is filed by a convicted person he is not disqualified. Section 8 lays down in all the three sub­sections (1), (2) and (3) that a person convicted of an offence incurs the disqualification. For those offences which are enumerated in sub-section (1) in clauses (a) to G) if the person is convicted and sentenced to six months imprisonment he shall be disqualified from the date of such conviction. Under Sub-section (2) a person who is convicted for any of those offences mentioned in sub-section (2) and sentenced to imprisonment for not less than six months he shall be disqualified from the date of such conviction and shall continue to be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Under sub-section (3) a person who is convicted of any offence and sentenced to imprisonment of not less than two years for offences other than those mentioned in sub­sections (1) and (2) he shall be disqualified from the data of such conviction and shall continue to be disqualified for a further period of six years since his release. The only exception given under sub-section (4) applies to persons who were already sitting Members of Legislature or Parliament and who had filed an appeal against the conviction. That is a transitory provision which had to be enacted in the statute to save the persons who are already Members of the Legislatures at the time of enactment of the law. It is significant to remember that inspite of the existence of Section 8 for all these years, the Election Commission was committing a mistake in permitting people who were convicted and who filed Criminal Appeals to contest the Elections. It should be remembered that the stigma of a conviction is not removed by mere filing an appeal. A correct interpretation of Section 389 and the provisions of Chapter XXXII of the Criminal Procedure Code indicates that mere filing of an appeal and pendency of an appeal does not wipe-out the stigma of a conviction. The appellate court suspending the sentence only postpones the execution of the sentence imposed by the Trial Court on the convicted person. The law permits the Appellate Court only to postpone the execution of the sentence and to release him on bail. This cannot be equated with conviction being wiped-out; only when the appeal is allowed and the convicted person is acquitted, the stigma of conviction and the consequential disqualification will be removed.

In some quarters apprehensions have been expressed to the effect that even the filing of a charge-sheet is likely to be used as in instrument to disqualify persons from contesting elections. This is a baseless apprehension. Section 8 of the Representation of Peoples Act clearly mentions that disqualification arises on conviction and sentence. It does not mention that mere filing of a charge-sheet or making an allegation is the basis for imposing disqualification.

Enlightened citizens feel that higher standards of political morality and public probity require that the political parties should exercise greater circumspection and restraint while considering persons as eligible to contest elections. Political parties should not give tickets to persons with a criminal record to contest elections. Higher standards of political morality also warrant that no person with past criminal record should ever be considered as fit to contest an Election. Unfortunately, in this country we have seen that several people with criminal record were given tickets by National and Regional Parties. In my opinion, it is the misfortune of the general public and citizens of this country that such a thing has happened.

Without naming individuals, I can quote several examples from my personal knowledge as an Advocate, Judicial Officer and as Law Secretary and Judge of High Courts of Andhra Pradesh and Kerala and as Lokayukta as to how political parties and Governments abuse the powers given to the Government under Criminal Procedure Code for withdrawing prosecutions. Just before 1962 Elections, a Trade Union Leader against whom 17 Sessions Cases were pending trial was allowed to contest the Elections by the Government withdrawing all the 17 serious Sessions cases. He was later made a Minister. There are also several instances throughout India where criminal cases pending against powerful and influential candidates are withdrawn to enable them to contest elections. There are also instances where several sitting M.L.As., and Members of Parliament were accused in serious criminal cases like dacoity, murder,rape, cheating, etc. There are numerous instances of criminal prosecutions pending against sitting Legislators being withdrawn by the Government by exercising its powers under the Criminal procedure Code. This sort of examples will not be found in well­ established and mature democracies.

The recent directives given by the Election Commission are a step in the right direction to make the Indian democracy more fair and free. It is a step in the right direction to eliminate criminal elements, viz., Law Breakers from becoming Law Makers. In my personal opinion the Election Commission has to be congratulated for the bold stand it has taken in reiterating the existing legal position in the proper perspective. It has done yeoman service to the nation. The recent directive compelling candidates to file affidavits about their previous criminal history is also a welcome procedure because if later it is found that a candidate had a prior criminal record or he was convicted and disqualified, he cannot be prosecuted for perjury unless he makes the statement in the form of an affidavit. Sri G.V.G. Krishna Murthy the Election Commissioner who insisted upon the filing of the affidavits has done the right thing.