Criminalisation of politics in India is a growing problem, despite legal attempts to address it. In 2003 a law was introduced to prohibit the election of criminals or alleged criminals to state or central legislature. However, persons with criminal or alleged criminal backgrounds continue to hold seats in parliaments all over the country. In fact, current statistics show that some 23.2 per cent of members of parliament in India have criminal investigations or cases pending against them. The forthcoming state election in Uttar Pradesh is a case in point. An estimated 35 per cent of candidates have trials and cases pending against them. The charges include rape, armed robbery and murder.
The primary reason for criminal elements gaining political power is the failure of rule of law. When justice becomes distant and elusive, alternative platforms surface to deliver so-called justice through muscle power. Criminals protect the illegitimate interests of politicians and in turn obtain protection from them and their parties. This mutually beneficial relationship works against the establishment of the rule of law. As a consequence, the criminal justice system is increasingly corrupted and manipulated. This decrepit state of affairs is essential to the continued criminal hold on parliaments across the country, as reasonably well-functioning police, prosecutors and courts would be a death blow to those in control.
The election commission and parts of government have set down norms and appointed committees, with little effect. The Vohra Committee report paints a grim picture of criminal elements in politics and has made various suggestions, as has the National Committee on the Review of the Working of the Constitution. Based on this information, the Election Commission of India has filed a number of proposals for the consideration of the Government.
The judiciary has also made directives concerning the writ petitions filed by the Association for Democratic Reforms [ADR] and the Peoples Union for Civil Liberties [PUCL] in May 2002. The central government failed to take any legislative initiatives to bring greater transparency to elections in response. However, the Election Commission of India the following month mandated disclosure of criminal records of electoral candidates–including convictions, charges pending and cases initiated, financial records and assets and liabilities of a candidate, their spouse and other close relatives.
To circumvent this order, the government drafted an ordinance with provisions expressly in violation of the Supreme Courts directives and Article 19 (1) of the Constitution of India. In August 16 2002 the government sent the ordinance for the presidents approval. However, concerned citizens and activists got together under the banner of the National Campaign for Electoral Reforms and pressured the president to refer the matter under Article 143 of the constitution to the Supreme Court. The president returned the ordinance to the Indian parliament for reconsideration on 23 August 2002. But the cabinet reiterated its position against disclosure of details of the candidates for election and simply returned the ordinance to the president, who had no other option by law but to promulgate it.
The Lok Satta, PUCL and ADR challenged the constitutionality of the ordinance in the Supreme Court, which on 13 March 2003 struck down the amendment brought in by the ordinance by holding that Section 33B of the Representation of Peoples Act of India is unconstitutional. It also held that the parliament cannot abridge the right of the citizens to know about the candidates and for all practical purposes declared that the notification issued by the Election Commission of India must be made law.
As of now candidates to an election are obliged to submit an affidavit in a prescribed form declaring assets, liabilities and criminal antecedents. Furnishing of wrong information is an offence and on proof the election of the candidate is invalid.
To exercise freedom of speech and expression there must be freedom of choice, which depends upon the right to be informed. Citizens have every right to know about the persons whom they prefer as their representatives. This is a fundamental right under Article 19 (1) of the Constitution of India. The guidelines issued by the Election Commission of India mandate the presiding officer of a district to provide information about the candidate to anyone who claims and denial of such data is illegal.
The political parties of India have a moral and legal responsibility to weed persons with criminal records or pending allegations out of their ranks. Their minimum duty is to provide citizens with a genuine choice for representatives, not persons seeking to use state resources to defend themselves and their cronies. The Asian Human Rights Commission calls on them to start in Uttar Pradesh, where the present dismal choice of candidates leaves little hope for the future of Indias claim to be the worlds largest democracy.
