Supremacy of SC
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court has given a shock treatment to all political parties by passing certain directions to curb the “alarming” rise in criminalisation of politics by making it mandatory for them to justify fielding tainted candidates in polls. All parties are now required to give wide publicity through newspapers and social media about the criminal antecedents (if any) of the candidates nominated to contest an election and provide the reason for selecting them and not others without criminal background.
Truly, the Supreme Court must have lost patience constantly hearing cases against political power-holders and wants to lay down norms for vetting candidates seeking membership of legislative bodies. What the Election Commission started seems to have received not just the concurrence of the Supreme Court, but more than that, its active involvement and actual takeover of the task.
This stand of the SC is modification of its own earlier view of non-involvement in this matter. Hearing a PIL seeking to debar elected members against whom grave criminal charges had been framed, the Supreme Court in 2015 maintained that it could not step into the arena marked for legislatures and that parliamentarians should take a call and enact a law. Again in 2018, a Constitution Bench, hearing petitions to bar tainted politicians from contesting election, said it could not legislate for Parliament. “The court declares the law, the Parliament makes the law”, said the court. It expressed anguish at the helplessness of the society to prevent criminalisation of politics at the very entry-point.
The present order is issued in a contempt petition filed against the EC for non-compliance of its order passed in 2018 regarding giving information on criminal antecedents of candidates fielded by parties. That order given by a Constitutional Bench said that rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators, but should begin by “cleansing” political parties. The Court has asked for compliance report in 72 hours.
Indeed, it is interesting to read a report simultaneously appearing in a national newspaper that a three-time MLA in Chhattisgarh confessed to the police to committing double murder in 2016!
The Court has directed all parties to upload information regarding pending criminal cases against the selected candidates within 48 hours of selection or two weeks before the beginning of nominations. It is a tall order which may well shake all parties without exception, for failure would mean defamation of court order.
The reason for selection should provide his/her qualifications, achievements, and merits and not the undefined ability to win in the polls. Electoral politics in democracies has successfully delinked qualities and qualifications from vote capturing ability. The SC justifies its recommendations on the ground that between 2004 and 2019, percentage of tainted MPs had increased steadily from 24% to 44%. The increase in percentage of candidates with criminal cases was 13.3% in 2004, 14.5% in 2009, 17.1 % in 2014, and 18.9 % in 2019.
The Report of the Association for Democratic Reforms which analysed the background of 4,845 out of 4,896 election affidavits of incumbent MPs and MLAs found that 36% of them were facing criminal trial in 3,045 cases. In the States, the figures vary as 62% of MLAs in Maharashtra, 43% in Delhi, 37% in West Bengal, 36% in UP, and 34% in Tamil Nadu. A report of the Haryana Election Watch in 2014 put the figure for that State as 94 out of 1,351 candidates with 31 booked under serious charges. In 2016, in TN, nine Ministers facing criminal cases were included in Jayalalitha’s Cabinet.
Attempts so far made by the EC to debar candidates with criminal record from contesting election have not been successful. A verdict of the SC declared Section 8(4) of the RP Act ultra vires which allowed convicted members to continue their membership if they had filed an appeal within three months of conviction. Despite the requirement of an affidavit in the nomination form seeking affirmation from the candidates in the 2014 Lok Sabha election that they had not been charge-sheeted in criminal cases, it was found that 150 out of 4,708 candidates all over the country had at some point of time some charge against him like murder, rape, robbery, extortion, etc.
The satisfaction was that the number was substantially lower than the record of 1,500 such candidates in 1996. One of the ECs was reported to have stated at that time that, “We could at best administer shock therapy on the criminal elements by introducing the affidavit. But we cannot shut them out altogether unless there is a law in this regard”.
In a drastic move, the EC in August 1997 issued an order that no convicted person would be allowed to contest elections even if on bail or an appeal was pending in a higher court. It was followed by a Resolution in the Lok Sabha committing all political parties to a pledge that they would not give tickets to persons with criminal background or corruption charges.
In 2002, the Representation of People’s Act was amended thrice adding three grounds for disqualification for contesting elections. Not only conviction for any offence under Commission of Sati (Prevention) Act, Prevention of Corruption Act, and Terrorism Act became a disqualification for candidates but made the candidate ineligible to contest for six years after completion of the sentence or payment of fine imposed. All candidates were also required to furnish information whether they had been accused or convicted of any offence under those Acts and not wait till conviction.
Criminalisation of politics – a term with which we are familiar since the Vohra Committee report in 1993 – is said to be a buzz word in the US used in the media from Clinton’s time.
In Australia, it is openly said that laws “restricting the ability of criminals to engage in politics” exist in every Australian jurisdiction. Crime-politics alliance has been at work in many countries — China, Mexico, Nigeria, Brazil, and Australia among many others. With criminals providing finance and politics extending protection, the partnership seems to have taken deep roots that pose a serious threat to all democratic institutions and law and order in society. It is worst type of patron-client relationship.
In the UK, the House of Commons has no record of criminal conviction of MPs. Members are not obliged to provide this information. MPs are not considered “public authorities” for the purpose of freedom of information.
PCN (political-criminal nexus) is the abbreviation used to study the collaboration between political establishment and the criminal underworld which undermines the rule of law, human rights, and economic development. Unlike other crimes, PCN is described as representing a “symbiotic relationships between illegitimate criminal networks and key elements in legitimate society that exploit public interests for private gains”.
Governments cannot eradicate this evil without the cooperation of political parties, and parties that may be already caught in criminal network may have to struggle to extricate themselves from its hold. Our hope lies with the Supreme Court to act and act immediately.— INFA