‘Law-Breakers’ in race to become ‘Law-Makers’


In five states that are going to poll, as usual, many law-breakers will put in all efforts to become law-makers and our Constitution will be mute spectator to catch hold of law-breakers eyeing to become law-makers, as the constitution has blank pages for this remedy. The power of the ballot will turn into the power of the wallet for some of those in the race to contest elections. The trend of inducting criminals into politics began in the eighties and it started from UP when the two mafia dons contested and won elections. Thereafter, all parties started fielding criminals who did not depend on party organizations to contest elections and had ample money and muscle power of their own.
Criminalization of Politics means the participation of criminals in politics which includes that, criminals can contest in the elections and get elected as members of the Parliament and the State legislature. If we follow the presence of tainted representatives both in Parliament as well as in State Assemblies, we come across alarming data from ADR. Out of the 539 winners analyzed in Lok Sabha 2019, 233 MPs have declared criminal cases against themselves. This is an increase of 26% as compared to 2014 and 44 per cent in the number of MPs with declared criminal cases since 2009. When we concentrate on the states going to elections, we find 143 legislators out of the total 403 have 'impressive' criminal antecedents with maximum share of BJP 114 MLAs in UP. Sixteen MLAs of the 117 in Punjab Assembly are facing police cases. During the 2017 Assembly elections, 22 out of 70 MLAs in Uttarakhand had been facing criminal charges including rape, murder and money extortion. There has been an unsaid understanding among the political parties which deters Parliament to make strong law curbing criminalization of politics. It takes place primarily due to the nexus between politicians and criminals. Today, the line has blurred - one does not know if a politician is into crime or a criminal is into politics. The matter of tainted representatives and ministers has been agitated many times in the Courts but fruitful results are nowhere.
When we traverse the judgment of the Constitutional bench composed of Chief Justice, Dipak Misra, Madan B. Lokur, Kurian Joseph, S.A. Bobde in case Manoj Narula vs Union Of India delivered on 27 August, 2014, we find that point of great public importance raised in the petition was broadly about the legality of the person with criminal background and/or charged with offenses involving moral turpitude being appointed as ministers in Central and State Governments. It was observed by the Bench that it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Firm view was pressed that the Prime Minister and the Chief Minister of the State, who themselves have taken oath to bear true faith & allegiance to the Constitution of India and to discharge their duties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offenses involving moral turpitude & also offenses specifically referred to in Chapter III of The Represen-tation of the People Act, 1951.
A five-judge Constitution bench had in September 2018 said that criminalization of politics is a "bitter manifest truth" which is a "termite" to the citadel of democracy. In the 2018 verdict, the Constitution bench had said that criminalization of politics is an "extremely disastrous and lamentable situation" and this "unsettlingly increasing trend" in the country has the propensity to "send shivers down the spine of a constitutional democracy". The Constitution bench had said that the increasing trend of criminalization of politics tends to disrupt constitutional ethos and strikes at the very root of our democratic form of government. On 10 August 2021, a three-judge bench of the Supreme Court ordered that no prosecution against a sitting or former member of legislative assembly or parliament will be withdrawn without the permission of a high court. Recently, the Supreme Court in the two different judgments has raised concerns about the menace of criminalization in politics. In one case, it found nine political parties guilty of contempt for not following in letter and spirit its February 13, 2020 direction that required political parties to publish details of criminal cases against its candidates on their websites, a local vernacular newspaper, national newspaper and social media accounts. This is to be done within 48 hours of candidate selection or not less than two weeks before the first date for filing of nominations, whichever is earlier. In another case, it has issued directions that no criminal case against MPs or MLAs can be withdrawn without an approval of the high court of the concerned state.
Several laws and court judgments have not helped much, due to the lack of enforcement of laws and judgments. The only way forward is that the nature of the government machinery needs to change to make it more transparent, accountable & pervade, awareness among people (voters) should be created about their rights and they should vote for the right person. Given the reluctance by the political parties to curb criminalization of politics and its growing detrimental effects on Indian democracy, Courts must seriously consider banning people accused with serious criminal charges from contesting elections and deal with the political parties giving mandate to tainted persons by dolling out heavy penalties and other restrictive measures.
(Views expressed are personal.)

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