Criminalisation of Politics and Electoral ReformsA project report submitted in partial fulfilment of the degree inMaster of Laws (LL.M.) 2010 2012

SUBMITTED BY:-Ms. Priyanka DasRoll no: 14015V102015 Regd No: 31085/04UNDER THE GUIDANCE OFProf. Dr. P.K.SarkarP.G. Department of Law

POST-GRADUATE DEPARTMENT OF LAW, UTKAL UNIVERSITYVANI VIHAR, BHUBANESWAR(2010-2012)

Dedicated to my Parents and my Teachers

Acknowledgement

The writing of this dissertation has been one of the most significant academic challenges I have ever had to face. Without the support and guidance of the following people, this study would not have been completed. I owe my gratitude to all those people who have made this dissertation possible. I would like to express my deep and sincere gratitude to my guide Prof. Dr. P.K. Sarkar, Professor in Law, P.G. Department of Law, Utkal University, for his continuous support. He was always there to listen and to give advice even after his busy schedule. He showed me different ways to approach a research problem and the need to be persistent to accomplish any goal. His understanding, encouraging and personal guidance have provided a good basis for the present thesis. Above all and the most needed, he provided me constant encouragement and support in diverse ways. Besides my guide, I am also greatly indebted to many teachers, especially Prof. Dr. P. K. Pattnaik, Dr. Durgesh Chandra Mohapatra, Reader of Law and Prof. Dr. Madhusudan Dash, H.O.D, for their valuable support and suggestions which helped me not only in completion of this dissertation but also in my two years of LL.M. programme.I am also obliged to acknowledge the administration for providing a wonderful library which is a store house of information and also for providing invaluable electronic resources without which no such research was ever possible. The Library and especially the librarian Mr. Chinmay Kumar Jena deserve a lot of thanks for being so helpful.Collective and individual acknowledgments are also owed to my friends and seniors. Their support and care helped me overcome setbacks and stay focused on my study. I greatly value their friendship and I deeply appreciate their belief in me. Last but not the least I wish to avail myself of this opportunity, to express a sense of gratitude and love to my parents and family for the unconditional support, strength, help and encouragement they have given to pursue my interests and for everything. Finally, I would like to thank everybody who was important to the successful realization of thesis, as well as expressing my apology that I could not mention personally one by one.

PRIYANKA DAS IInd Semester Roll No. 14015V102015 P.G.Dept. of Law Utkal university, vani vihar

DECLARATIONI Ms. Priyanka Das hereby declare that the work embodied in this dissertation entitled, Criminalisation of Politics And Electoral Reforms researched and submitted by me under the guidance and supervision of Prof. Dr. P.K. Sarkar, Professor in Law, P.G. Department of Law, Vani vihar is an original, bona-fide and legitimate work and it has been pursued for an academic interest. This work or any type thereof has not been submitted by me or anyone else for the award of another degree of either this University or any other University.

PRIYANKA DAS L.L.M (2 ND SEMESTER) P.G. Deptt.of Law Utkal university, Vani vihar.

POST-GRADUATE DEPARTMENT OF LAW, UTKAL UNIVERSITYVANI VIHAR, BHUBANESWAR

Certificate It gives me pleasure to certify that Ms. Priyanka Das, student of LLM bearing Roll No. 14015V102015 has completed her Dissertation captioned, Criminalisation of Politics And Electoral Reforms in partial fulfilment of the requirements for the award of the Degree of Master of Laws under my supervision. Ms. Das collected valuable materials from different sources and thereafter analysed in systematic manner. The efforts made by Ms. Das will pave the way to further research in this field. I wish her all success in life.

Prof. (Dr.) P.K. Sarkar Professor P.G. Department of Law. Utkal University, vani vihar. Bhubaneswar.

TABLE OF CASES1. Kanwarlal Gupta vs. Amar Nath Chawla (1975) 3 SCC 646 2. Compendium of Instructions, 2009, Election Commission of India3. Proposed Electoral Reforms, 2004, Election Commission of India4. L.R. Shivaramagowde vs. P.M. Chandrasekhar AIR 1999 SC 2525. Notification S.O. 425(E) dated 23rd February 2011 of the Ministry of Law and Justice (Legislative Department)6. Rajendran Chingaravelu vs. R.K. Mishra (SC: Civil Appeal No 7914 of 2009)7. Mohinder Singh Gill vs. Chief Election Commissioner (1978) ISSC 4058. T.S. Krishna Murthy and Vijay Patidar, Case Study 2, India9. Common Cause a Registered Society vs. Union of India, 1996(2) SCC 75210. Namit Oberoi, Reforming Election Funding, I NUJS L. Rev (2008) 137-14811. P. Nalla Thampy Terah vs. Union of India AIR 1985 SC 13312. C. Narayanswamy vs. C.K. Jaffer Sherief 1994 (Supp) 3 SCC 17013. Gajanan Bapat vs. Dattaji Meghe 1995(5) SCC 43714. Gadauh Yashwantrao Kankarrao Vs Balasaheb Vikhe Patil 1994(1) SCC 15. .AIADMK Vs. Chief Election Commissioner and Another 23.04.2001 1.16. Union of India Vs. Association for Democratic Reforms & Another 02.05.2002 317. Indian National Congress (I) Vs. Institute of Social Welfare & Othrs 10.05.2002 ,3918. Gujarat Election - Reference Case 28.10.2002 6519. Peoples Union for Civil Liberties (PUCL) & another Vs. Union of India and other, 13.03.2003, 177.20. Ram Phal Kundu Vs. Kamal Sharma 23.01.2004 271.

21. Manda Jaganath Vs. K.S. Rathnam & othrs 16.04.2004 299.22. K. Prabhakaran Vs. P Jayarajan & 11.01.2005 311.23. Ramesh Singh Dalal Vs. Nafe Singh & Othrs.24. Rameshwar Prasad & Othrs. Vs. Union of India & Othrs. 24.01.2006 35225. Michael B. Fernandes Vs. C.K. Jaffar Sharief & Othrs. 14.02.2002 37726. Secretary, Ministry of Information & Broadcasting Vs. M/s. Gemini TV Pvt. Ltd. and Others 13.04.2004 385.27. Union of India Vs. Harbans Singh Jalal & Ors. 26.04.2001 39428. Jaya Bachchan Vs. Union of India & Ors. 08.05.2006 39829. Michael B. Fernandes Vs. C. K. Jaffer Sharief & Others ,Karnataka 405 High Court05.02.200430. Election Commission of India Vs. State Chhattisgarh & othrs 417 of High Court 17.11.200331. Lalji Shukla and Ajai Mohan Sharma Vs. Election Commission & Others Allahabad High Court 460 16.01.200232. AIADMK Vs. the Chief Election Commissioner & Others Madras High court10.04.2001 46533. Abhay Singh Vs. State of Uttar Pradesh & Others Allahabad High Court 04.2004 50834. Rajasthan Advertising Company& Others Vs. RSRTC High Court Rajasthan 30.04.2004 ,51235. HRA Choudhury & Others Vs. The Election Commission of India & Others High Court Gauhati 11.01.2002 522

REFERENCE1. Manual of Election Law, 2004, Government of India, Ministry of Law and Justice.2. Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report.3. N.S. Gehlot, Electoral Reforms in India: A need for national action within Indian Politics, 212-234 (K.L. Kamal & R.P. Joshi ed 1996).4. B. Hyedervali, Law and Corruption in India, 29 Indian Bar Rev (2002).5. Citizens Campaign for Electoral Funding Reforms, http://www.loksatta.org/ccer.htm.6. Dolly Arora, State Funding of Elections Some Posers, Economic and Political Weekly (2000).7. E. Sridharan, Reforming Political Finance, http://www.india-seminar.com 2001/506/5046536%20e.%20sridharan.htm.8. M.V. Pylee, Emerging Trends of Indian Polity 43 (1998).9. B. Venkatesh Kumar, Funding of Elections Case for Institutionalized Financing, Economic & Political Weekly, 1884 (1999).10. C. Rajasekhar, Ensuring Free and Fair Elections: Role of Election Commission of India, 26 Indian Bar Review (1999).11. J.S. Bali, Political Parties and Electoral Reforms in Perspective of the Constitution (1998).12. Orissa Government Portal http://orissapanchayat.gov.in.13. Official website of Orissa High Court for publication of HC Judgments www.orissahighcourt.nic.in.14. National Portal of India www.india.gov.in15. S.T.Beuria, Panchayat Polls Marred by Violence, A Report in the Deccan Herald Bangalore, 11th July 1992.16. Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report.

TABLE OF CONTENTAcknowledgement DeclarationCertificateTable of CasesReference

CHAPTERS............................................................................................PAGE NO1. INTRODUCTION IN GENERAL. 1.1 OBJECTIVE OF THE STUDY. 1.2 HYPOTHESIS. 1.3 STATEMENT OF PROBLEM. 1.4 RESEARCH METHODOLOGY.

2. HISTORICAL BACKGROUND 2.1 DEVELOPMENT OF THE CONCEPT.

3. LEGISLATIVE FRAME-WORK.

4. DISCUSSION ABOUT THE TOPIC.

5. STATISTICAL AND EMPIRICAL STUDY.

6. JUDICIAL REVIEW.

7. CONCLUSION. APPRAISALS, RECOMMENDATIONS AND SUGGESTIONS.

8. BIBLIOGRAPHY.

CHAPTER 1 - INTRODUCTION

1. INTRODUCTION CRIMINALISATION OF POLITICS

Democracy implies rule of law and holding of free elections to ascertain the will of the people. But in quite recent times this peaceful process of social change has been much vitiated. Violence, rigging, booth capturing etc. has become the order of the day. Criminalisation of politics has become a headache for the Indian democracy. Its shameful to admit that in the worlds largest democracy the cult of the gun prevails; Goondas and Criminals are hired to capture booths and kill political rivals etc. In this way the entire democratic process is negated. Whats more surprising and rather shameful is that these people even after committing serious criminal offences make their way to the Parliament and Assemblies, which is the highest governing body in the country. Thus you can imagine what will be the fate of the nation, if power is given to undeserving criminals. In this project I have tried to identify a few Politicians in the current i.e. 15th Lok Sabha, with criminal records. I have discussed in detail what prompts them to commit crime with the help of different criminal theories with respect to the Indian context. Moreover, discussing the current legal policies in curbing the menace of criminalisation and the reforms required to make the worlds largest democracy clean and efficient enough to deliver. [footnoteRef:1] [1: Dash, Siddhartha (2006): Need for Electoral Reforms Orissa Review, January]

CRIMINALISATION of politics is a grave problem in India. This menace began in Bihar and gradually spread to every nook and corner of the nation. In 2003, a law was introduced to prohibit the election of criminals to the legislative bodies. However, persons with criminal background continue to hold seats in Parliament and State Assemblies. This leads to a very undesirable and embarrassing situation when law-breakers become law-makers and move around under police protection. During the 13th Lok Sabha elections candidates having criminal cases against them numbered 12 in Bihar and 17 in Uttar Pradesh. It has been rightly observed by J.P.Naik: Power is the spoiler of men and it is more so in a country like India, where the hungry stomachs produce power hungry politicians.The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. From time to time, it has set down norms and made recommendations to the government to curb the menace of criminalisation of politics. The Commission has urged all political parties to reach a consensus that no person with a criminal background will be given the party ticket. The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, charges pending and cases initiated against them. The information so furnished by the candidates shall be disseminated to the public, and to the print and electronic media.[footnoteRef:2] [2: Rao, Ritu (2004): Assessing the Electoral System: A Positive Verdict, Economic and Political Weekly, December 18.]

Criminalisation Of Politics A Threat To DemocracySHIMLA: Identifying growing role of money power in the elections as 'a big menace' of Indian democracy, former Chief Election Commissioner BB Tandon has suggested a suitable legislation based on the political consensus against it. The Election Commission has made various recommendations regarding partial state funding of polls which should be given a serious thought, Tandon said. He said steps should also be taken to ensure transparency in the funds of political parties. Tandon pointed out that criminalisation of the political system is threatening the very roots of democracy. The election commission had recommended that the candidate should not be allowed to contest election if charges are framed against such person by the court."But these recommendations were not accepted by the standing committee of the parliament," Tandon said. The political parties should take a pragmatic view on this issue and come out with a suitable measure, the former CEC added. He also suggested political parties also evolve a code of ethics among themselves and not give ticket to such criminal elements. Tandon said, "It is only the will-power of the political parties which could help Indian democracy get rid of this menace. The former CEC said before demitting office he had suggested to the President of India that appointment to the high offices of CEC and EC should be made by the President based on the recommendations of a high-level committee under the chairmanship of Prime Minister which should also have leader of the opposition of both houses of Parliament. Speaker of the Lok Sabha and the Vice Chairman of the Rajya Sabha should also be made members of this committee along with the Home Minister, he said. This should be broadly on the pattern which is prescribed under the law for appointment of Chief Information Commissioner and other Information Commissioner under the Rights to Information Act. Tandon congratulated the EC[footnoteRef:3] for conducting the recent election in Uttar Pradesh in a free, fearless and fair manner."This was a big challenge for the CEC N Gopalaswami and he successfully faced this challenge. It is for the first time in up not a single election related death or violence occurred," Tandon, a Himachal Pradesh cadre IAS officer, said. [3: , www.eci.gov.in]

ELECTORAL REFORMS IN INDIA India stands as a model for many emerging democracies around the world. Free and fair elections are the hallmark of a well functioning democracy. While we are justifiably proud of our democracy, there are a number of areas which need to be strengthened for us to realise the true potential of a well functioning democracy. Our election system, from the selection of candidates, to the manner in which funds are raised and spent in election campaigns, are in dire need of significant changes.

There has been a growing concern over the years in India about several aspects of our electoral system. [footnoteRef:4] The Election Commission has made changes in several areas to respond to some of the concerns. There have also been a number of committees which have examined the major issues pertaining to our electoral system and made a number of recommendations. But there remain some critical issues that might need legislative action to bring about the required changes. [4: Rao, Ritu (2004): Assessing the Electoral System: A Positive Verdict, Economic and Political Weekly, December 18.]

The criminalisation of our political system has been observed almost unanimously by all recent committees on politics and electoral reform. Criminalisation of politics has many forms, but perhaps the most alarming among them is the significant number of elected representatives with criminal charges pending against them. Two measures recommended by previous committees are discussed in this paper: enforcement of the disclosure of criminal antecedents of candidates, and eligibility restrictions for candidates with criminal cases pending against them. The financing of elections has become a major issue in the past few decades. It is widely believed that the cost of fighting elections has climbed far above the legal spending limits. This has resulted in lack of transparency, widespread corruption, and the pervasiveness of so-called black money. This paper summarises proposals made on the following issues: limits on campaign expenditure, disclosure and audit of assets and liabilities of candidates and parties, methods of reducing the cost of political campaigns, as well as state funding of elections.

The conduct of elections also has a number of issues that need to be addressed. While the massive size of the electorate makes holding elections a daunting task, it should not serve as a justification for the presence of issues such as booth capturing, intimidation of voters, tampered electoral rolls, large-scale rigging of elections and other polling irregularities; the proliferation of non-serious candidates; and the abuse of religion and caste in the mobilization of voters. Potential solutions to these problems are outlined in this paper. This paper also takes consideration of major issues dealing with the role of political parties in the electoral system: proliferation of non-serious parties; process of recognition and de-recognition of political parties; disclosure of assets and liabilities of parties; and audit and publishing of assets and liabilities.Resolution of election petitions and disputes, as well as rulings on defections, are two important processes seen to be operating in a slow and inefficient manner by many pervious committees. This paper reviews recommendations made to mitigate these problems. The Ministry of Law and Justice,Government of India, has constituted a Committee onElectoral Reforms.[footnoteRef:5] The main purpose of the Committee is to recommend to the government concrete ways in which our electoral system can be strengthened.The Committee will take into account the opinions of political leaders, Government servants, legal experts, NGOs, scholars, academics, journalists, and other stakeholders. [5: www.eci.gov.in]

1.1OBJECTIVE OF THE STUDY

This project tries to address the following objectives:- To study the composition of MPs with criminal records. Analysing the reasons behind committing of crimes with the help of different criminal theories. Role of existing legal provisions regarding the qualification of candidates. Are they efficient enough to prevent criminals from contesting? Find out the Steps to curtail the criminalisation of politics. To study the composition of electoral processes in India regarding parliament and assembly elections. Find out the existing legal provisions regarding electoral reforms. Find out the Steps to strengthen the electoral reforms.

1.2HYPOTHESIS

1.The root cause of crime among politicians is the result of obsession with power and fearlessness of law. And crime is a shortcut to name, fame and money.

1. Indian politics is being maligned with the entry of criminals as a result of which there is a rise in corruption and lawlessness in the society, to prevent these criminal antecedents the electoral reforms have turned out to be a powerful weapon in tackling the criminal aspect of elections. The election commission has turned out to be a big brother to keep a vigil on the criminals entering into politics.

1.3 STATEMENT OF PROBLEM

1. Criminalisation of politics in India: A study of politicians in the 15th Lok Sabha with criminal records. This is about studying the composition of parliamentarians with criminal records in the current Lok Sabha so as to obtain a pattern whether the crime is centralized or scattered. Then, analysing with the help of different theories of crime the motivation behind the criminal acts. Studying the legal provisions in force to address the problem and suggesting reforms and solution to curb the menace.

2. Electoral reforms in India: A study of electoral reforms, its component, processes and measures. This study is about the composition of election commission, its powers and jurisdictions to control and regulate the existing election process. Then analysing the effectiveness of the existing legislations on electoral reforms in regulating the elections in India at Panchayat, assembly and parliament elections. Then suggesting recommendations to further strengthening the electoral reforms.

1.4 RESEARCH METHODOLOGY

I being the researcher have derived the material from two sources, namely primary sources and secondary sources. This project work has been designed as a Doctrinal study.

Sources Of Primary Data Collection

Books on criminal theories and constitutional provisions.

Internet Databases including the websites of various newspapers like DNA, The Hindu, Times of India etc.

Magazines like Economical & Political Weekly, India Today and Frontline, Law Journals, Law Magazine, Periodicals, All India Reporters.

Government Websites hosted by National Informatics Centre.

Case studies from Manupatra.

Sources of Secondary Data Collection The secondary sources of the present study are interactions with my guide, professors and friends.

CHAPTER 2 HISTORICAL BACKGROUND

development of the concepts INDIAboasts of being the worlds largest democracy. With the passage of the 73rd and 74th Amendments on Panchayati Raj, it can make the further claim of being the most representative one, with over three million grassroot legislators being elected, a third of them women. The country has of course a strong democratic tradition of electoral politics and the Election Commission has won plaudits, both at home and abroad. But democracy goes beyond periodic elections, despite their seminal importance in ensuring free and fair choice. What is more important is the participative nature and quality of democratic governance. It is here that the country needs to be vigilant to ensure that its parliamentary system is not hollowed by the criminalisation of the political and electoral political process.

Of course, electoral politics is not the sole reason for the criminalisation of politics. The lure of money and the role of vested interests are among other reasons. Nevertheless, many analysts believe that the electoral process is a major fount of corruption and criminalisation in the country. Gaining leverage on politicians has become the road to immunity, if not power. It is now common knowledge that a number of elected representatives to local bodies, state legislatures and even Parliament are persons of unsavoury reputation and, some of them hardened criminals. Alarmed by this trend the Supreme Court intervened a couple of years ago to order a disclosure regime that requires electoral candidates to make known their criminal record, if any, their assets and those of their immediate relatives, and their educational qualifications. The Central Election Commission worked out the related procedures and details. But, not altogether to the publics surprise, the scheme was unanimously opposed by all parties on grounds that ranged from its impracticality to the likely harassment of innocent persons that it could cause. The story possibly goes back to the immediate post-Independence period when prohibition was introduced in the old Bombay and Madras presidencies. All it did was to drive the process of procuring liquor and imbibing it underground. Bootleggers flourished and all manner of noxious brews were peddled to the detriment of civic conduct, the law and public health. Prohibition was later scrapped, and then reintroduced. But it has never truly worked - anywhere. However, it did permanently scar the Indian polity and society. Bootlegging flourished with the connivance of the police, bureaucracy and politicians. An underground supply chain came into being with an elaborate and accepted system of bribery. This ensured that the law-enforcement machinery was bought up to permit moonshining, with a guarantee of both immunity and impunity. The law permitted a certain class of persons to get liquor permits on medical considerations. Such medical certificates were soon on sale, corrupting the medical profession. The fact that drink and drunken revelry continued was an open secret. And behind it all, the liquor mafia grew in wealth, power and influence. An underground network developed, lubricated by bribery, corruption, blackmail and threats of violence. The mafia began to control men and mohallas, and developed their own protection squads to wage inter-gang wars and to deal with others foolish enough to cross their path. These liquor barons soon discovered that they did or could control vote banks through money and muscle. They were sought after by those in distresses to settle scores and by politicians to deliver votes or capture booths at election time. The mafia steadily grew and spread its tentacles over all manner of illicit operations foreign exchange, smuggling, the flesh trade, real estate and all manner of other dodgy business. And as their reach and power grew, so did the demands made on them for electoral services, such as rigging, providing unaccounted money and preventing certain classes of people from voting. But services are never rendered gratis. There is a quid pro quo and elected legislators found that they had to dance to the tune of their paymasters and underworld benefactors at the cost of the electorate, the democratic ethos and good governance. Before long, mafia dons discovered that they had become king makers. From there it was but a short step to becoming king. Why trouble to buy a legislator to get things done in the corridors of power. Simpler to do the job oneself by entering the legislature, win respectability and acquire "leadership" status in the bargain. Some people do really believe that to be elected by whatever means is to be placed above the law! Consider the fact that certain criminals and not only in Bihar have been elected from prison. Others have been reported holding durbars in jail, with all home comforts, as they instruct their minions by cellphone and rule their empire, issuing diktats that few dare disobey. Some take anticipatory bail to avoid arrest. Others find it easier to abscond while notices for their production in court are pasted on walls, nailed on doors and published and broadcast by the media. And when they are ready, they "surrender", engaging clever lawyers to argue their case! This narration is no exaggeration. Indeed, it leaves out much spice. The criminalisation of politics is widespread and has inevitably resulted in the politicisation of crime. Crime is now politics. The crime or wrong committed is of no matter. The question is on whose side the man is. The politicisation of crime has its own etiquette. But the message is the same. Poll protocol The malaise is sufficiently alarming for the Supreme Court to have intervened and the Election Commission to have laid down a protocol for the 2004 polls. The pro forma for disclosures with regard to assets and criminal background were in some ways too complex or left loopholes and the returning officers were also uncertain over procedures and definitions and otherwise overwhelmed by the mechanics of running the elections. However, that poll was a valuable learning experience both with regard to preparing better disclosure forms and securing better scrutiny and compliance for the future. The experiment evoked a very good public response and civil society groups set up a National Election Watch with regional/state units, to build local awareness about the new disclosure regime, interact with the Election Commission with regard to drawing up the forms, collating the information as disclosed by the candidates and then analysing them for the benefit of the media, local communities, political parties and others. Assets disclosure Analysis of the disclosures showed that many candidates were less than straightforward in recording their assets. With regard to criminality per se, there has been much debate on whether a person should be labelled a "criminal" just on the basis of charges or when an appeal is pending and until final conviction. "Due process", as often subverted in practice, can continue forever. However, there now appears to be a growing consensus that even if an appeal is pending against an adverse verdict in the trial court, candidates should be persuaded or required not to contest until their name is finally cleared. Whether such moral sanction will work remains to be seen. It would be more to the point and, in any event, absolutely essential that the credibility of the criminal justice system be restored. The chain extends from police reforms to the removal of the wide discretionary powers that reside with the political establishment and the bureaucracy to persecute some and either block or delay proceedings against others. The so-called executive single directive that requires the prime minister/chief minister or a minister to sanction the prosecution of a minister/official has inhibited prosecutions. The lack of any automatic machinery to prosecute those against whom a prima facie case may have been made out by a commission of inquiry has also meant that such inquiries are of little more than archival interest. The investigative agencies, including the CBI, have been used quite brazenly for political purposes on more than one occasion. This has resulted in eroding the credibility of these agencies. The public has become cynical about any fixer or operator getting his just deserts. They are all escape artists and simply get away even with murder. Colluding with them are elements in the law enforcement machinery. FIRs are not recorded, evidence not collected, investigations are pursued in a lackadaisical fashion, there is little expedition, and the prosecution, when that stage is reached, is not pressed with vigour. There would appear to be a clear case for independent public prosecutors empowered to initiate criminal proceedings against any person, including ministers and civil servants, against whom a commission of inquiry or other investigatory body has made out a prima facie case. The idea that this could lead to misuse and abuse is far fetched. Anyone found guilty of manipulating the law in this fashion should also be liable to prosecution. Once the message goes abroad that none can act with impunity, howsoever high or well connected or moneyed, criminal elements will come to heel. Influential people should not be entitled to special treatment in prisons or lock-ups and the law (and punishment) must be equal for all. Nor is there any reason to treat such people as privileged. A lawbreaker is a lawbreaker and should not expect preferential treatment on grounds of birth, status or wealth. The laws delays are exploited by criminals to postpone the day of reckoning. Adjournments are too easily granted, with the result that proceedings drag over months and years and the cost of litigation itself becomes increasingly burdensome, if not prohibitive. There is a good case for putting matters on a fast track with a warning that should either party seek avoidable postponements, the trial will proceed ex parte.ELECTORAL REFORM Electoral reform is another imperative and is something that could help clean public life. The cost of elections has risen sharply but also exponentially, in Parkinsonian fashion, in keeping with the money available for spending! Constituencies are spread over large areas and the electorates are huge, in fact, country-size in the case of parliamentary seats. Reaching out to the voter is, therefore, not easy. Partial state funding[footnoteRef:6] has been advocated; though cynics believe that this will only add to the quantum of money candidates spend. The alternative is to limit the span of elections, something that has been partly achieved with the introduction of electronic voting machines. But this process has been vitiated by security considerations that have led increasingly to staggered polling, even within single states, let alone nationally, in order to be able to give the administration time to move around essential electoral and security personnel. [6: Dolly Arora, State Funding of Elections Some Posers, Economic and Political Weekly (2000).]

It would be desirable to review this practice through consultations and reduce the election process to a span of a few days, even if old-time single-day polling is no longer possible. The other method would be to expand electronic canvassing and insist on a minimum number of election meetings when major contenders are brought on a single platform and can present their views before the people or be grilled by the media. This would be cost effective, both politically as well as in terms of outlays. It would be simple to make video recordings of these meetings and to replay them through some appropriate mechanism in different parts of the constituency. A far stricter accounting of electoral expenditure should also be required, with heavy penalties not excluding disqualification on defaulters and those found to have falsified their accounts. A reduction in election expenses will certainly reduce the dependence on slush funds and mafia support.More transparency The permit-licence raj has been partially dismantled. But there is scope for further de-regulation. This will reduce the premium on buying the discretionary power of decision-makers in favour of undeserving applicants. The newly legislated Right to Information Act will also promote a greater degree of transparency and accountability.Tackling terrorism A new phenomenon, absent 30 years ago, is terror. Real or imagined grievances and causes combined with the easy availability of small arms and other explosive material has engendered insurgency and terror. This too has spawned a certain kind of criminalisation of politics as witnessed in Punjab, the Northeast and Jammu & Kashmir. Fear buys compliance and silence. Insurgency and terrorism are, of course, far more complex phenomenon but do undoubtedly have a bearing on the criminalisation of politics. Caste and communal factors and feudal mindsets are also instrumental in subverting democratic norms and restraints. The sordid story of Dalit oppression and tribal exploitation bears the markings of a subtle criminalisation of politics. These too must be countered. Democracy is too precious a gift to be squandered or subverted by criminals. This is a battle that has to be collectively fought and won.

CHAPTER 3 LEGISLATIVE FRAMEWORK

3.Legislative Framework

LAW COMMISSION OF INDIA REPORTS:[footnoteRef:7] [7: Reform of the Electoral Laws (Report No. 170) [1999] INLC 170(1 May 1999) ]

Background - Whether in a parliamentary form of government or a Presidential form, indeed in every democracy, the process of election should be free, fair and equitable. Fortunately, our Constitution seek to provide for a free and fair election but problems have been arising in this regard on account of division in our polity on the basis of religion, caste, language, region and race. Free and fair elections are the very foundation of democratic institutions.

However there has been a steady deterioration in the standards, practices and pronouncements of the political class, which fights the elections. Money-power, muscle-power, corrupt practices and unfair means are being freely employed to win the elections. Over the years, several measures have been taken by Parliament to amend the laws relating to elections with a view to check the aforementioned forces. This report, which has been prepared after extensive consultations, is a step in the said process. It is hoped that Parliament will take prompt action to give them legislative imprimatur.

THE REPRESENTATION OF THE PEOPLE ACT, 1951: This act basically came in force to provide the necessary guidelines for the electoral process in India. It suggests every procedure involved in the electoral process; from the conduct of polls, the machinery involved for free and fair elections, to disqualification of members on certain grounds. Our focus is basically on the part III of the act which talks about the disqualification of members on certain grounds. CHAPTER III - Disqualifications for Membership of Parliament and State Legislatures.[footnoteRef:8] [8: sec.7 to sec. 11 talks about the disqualification of members]

Some of the important provisions are as follows:Section 123 of the Act of 1951 enumerates the corrupt practices for the purposes of Act 1951. These are:-(i) bribery(ii) Undue influence.(iii) Appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting on the ground of his religion race, caste, community or language, etc. (iv) Promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language.(v) Propagation, commission or glorification of the practice of sati.(vi) Publication by a candidate or his agent, etc or any statement of fact which is false or defamatory.(vii) Hiring or procuring of vehicles or vessel for the free conveyance of voters.(viii) Incurring or authorizing of expenditure in contravention of section 77 i.e. in excess of the amounts prescribed. (ix) Obtaining or procuring any assistance from any person in the service of the Government. (x) Booth capturing by a candidate or his agent or other person.

Consequences of commission of corrupt practices:The question whether a person found guilty of a corrupt practice at an election by a High Court or the Supreme Court in an election petition or an election by a High Court or the Supreme Court in an election petition or an election appeal should be disqualified for contesting future elections and if so, for what period is determined by the President under Section 8A (I) of the Representation of the people Act, 1951. The case of every such person is required to be submitted to the President by the Secretary of the House of which the impugned election related. Sub-section (3) of section 8A provides that the President shall obtain the opinion of the Election Commission on the above question of disqualification and shall act according to such opinion. The maximum period for which such person can be disqualified is six years from the date of order of the High Court / Supreme Court finding him guilty of a corrupt practice.The consequences of commission of corrupt practices may take any one or more of the following forms:-(i) disqualification for membership of Parliament and State Legislatures. The disqualification is for a period of six years from the date on which the order under Section 99 takes effect ( Section 8-A Act 1951)(ii) the person, found guilty of corrupt practice, by an order under section 99, may be disqualified from voting at election. The disqualification lasts for a period of six years from the date on which the order takes effect. (iii) The person disqualified for membership or for voting for commission of corrupt practices, is also debarred from acting as an election agent.(iv) The High Court may declare the election of the returned candidate as void under section 100 (I) (b) on the ground that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. Election may also be set aside for any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent if it is further proved that the result of the election, so far as it concerns a returned candidate, has been materially affected (section 100 (1) (d) (i)).Where there are more than two candidates contesting from a constituency, mere fact that a candidate secured the next highest number of votes after the returned candidate not sufficient to declare him elect on the conclusion that the returned candidates election was void for commission of corrupt practice. Representation of the people Act, 1951, S 101 (b), Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil. [footnoteRef:9] [9: (1994) 1 SCC 682, 725 :AIR 1994 SC 678. ]

Naming of guilty persons The High Court when declaring the election to be void must also record a finding whether any corrupt practice has been committed the nature of such corrupt practice and the persons found guilty thereof, (Raj Krushna Bose v. Binod Kanungo).[footnoteRef:10] [10: AIR 1954 SC 202. ]

A notice has to be given to a person who is not a party to the petition to appear before the High Court and to show cause why he should not be so named, (T.Nagappa v. T.Bassapa)[footnoteRef:11]. No fresh notice is required to be given to a party to the election petition in respect of the very charges which are the subject matter of enquiry therein and as to which he already has notice. Notice is necessary only in case of a person who is not a party and is required to be named under section 99. [11: AIR 1955 SC 756]

Under section 99, Act of 1951 the Court has no discretion in the matter. If the Court is of the view that any person, who is proved at the trial to have been guilty of any corrupt practice, the Court is bound to name that person. The duty under the Act 1951, is cast upon the Court or the Tribunal.Standard of proof:In Vimal (Dr.) v. Bhaguji,[footnoteRef:12] the Supreme Court has held that the allegation of corrupt practices must be established by clinching and unimpeachable evidence. Unless there is cogent evidence to take the case beyond reasonable doubt the election cannot be set aside. [12: AIR 1995 SC 1836]

Agency in commission of corrupt practice:Under section 100 (1) (b) of the Act, if the corrupt practice is committed by a returned candidate or an election agent, the election is void without any further condition being fulfilled. But, if the corrupt practice is committed by any other person other than the candidate or his election agent, it must be shown that it was committed by him with the consent of the candidate or his election agent. Under section 100 (1) (d)(iii), if the corrupt practice is committed in the interest of the returned candidate by an agent other than his election agent, it is further to be shown that the result of the election in so far as it concerns the returned candidate, has been materially affected. The agent here means the polling agent or any other person who is held to have acted in connection with the election with the consent of the candidate. A combine reading of clauses (b) and (d) (ii) of sub-section (1) of section 100 shows that there may be a corrupt practice committed by an agent with or without consent of the candidate or his election agent. If it is with the consent of the candidate or his election agent it will fall within the purview of sub-section (1)(b) of section 100 as the expression any other person under section 100 (1)(b) will include an agent other than election agent: otherwise it will be within the ambit of sub-section (1)(d)(ii).

BriberyBribery is a corrupt practice. It is defined as under:1. any gift, offer or promise by a candidate or his agent, or by any other person with the consent of a candidate or his election agent, of any gratification, to any person whomsoever, with the object, directly or indirectly, or inducing 2. a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at an election, or 3. an elector to vote or refrain from voting at an election, or as a reward to 4. a person for having so stood or not stood, or having withdrawn or not withdrawn his candidature, or5. an elector for having voted or refrained from voting .6. the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-7. by person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate : or8. by any person for whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting or any candidate to withdraw or not to withdraw his candidature.

Undue influence Undue influence as a corrupt practice is defined in clause (2) of Section 123, Act 1951. It means any direct or indirect interference, or attempt to interfere, on the part of the candidate or his agent or any other person with the consent of the candidate or his agent with the free exercise of any electoral right (Section 123 (2), Act 1951). There are provisions added to this. Any person, as is referred to above, who threatens any candidate or elector or any person in whom a candidate or an elector is interested, with injury of any kind, including social ostracism, ex-communication or expulsion from any caste or community or induces or attempts to induce a candidate or an elector to believe that he will become an object of divine displeasure and spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector and will be guilty of undue influence.[footnoteRef:13] [13: (section 123(2), Proviso (a) , Act 1953)]

A declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right, does not amount to exercise of undue influence.[footnoteRef:14] [14: (Section 123 (2), proviso (b), Act, of 1951.]

THE CONSTITUTION OF INDIA The constitution of India[footnoteRef:15] talks about certain rights and privileges under the subject of, Powers, Privileges and Immunities of Parliaments and its members. [15: Article.105]

These immunities give the member certain special privileges to carry out their duties in the parliament.Further Art-324-329A of the Constitution deals with Provisions regarding Election.

Article 324 provides for the appointment of an Election Commission to superintendent, direct and control elections. The Election Commission is n independent autonomous body and the Constitution ensure as in the case of the Supreme Court and the High Courts, that it may be able to function freely without any Executive interference. Constitution of Election Commission - The Election Commission hall consist of the Chief Election Commissioner and such other Election Commissioners as the President may from time to time fix. The Chief Election Commissioner and other Election Commissioners are appointed by the President subject to the provisions of any law made by Parliament for the purpose (Art 324 (2)) when other Election Commissioners are appointed the Chief Election Commissioner shall ct as the Chairman of the Election Commission. The President may also appoint after consultation with Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in its functions (Art 324 (4)). The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine. These rules however, are subject to any law made by Parliament. The Chief Election Commissioner can be removed from his office in the same manner and on the same grounds as a judge of the Supreme Court. The conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment from office by the President. Other Election Commissioner and Regional Commissioners can be removed on the recommendation of the Chief Election Commissioner. They can therefore perform their duties without fear, or pressure from the Executive or party in power.The President or the Governor shall, when requested by the Election Commission, make available to the Election Commission such staff as may be necessary to discharge its function. Thus the Election Commission shall have generally few staff of its own. It can demand necessary staff from the Centre and State Governments whenever required. Function of Election Commission- According to Article 324 (1) the Election Commission performs the following functions.The superintendence, direction and control of the preparation of the electoral rolls and also the conduct of elections to Parliament. State Legislatures and to the offices of President and Vice-President.There shall be one general electoral roll for every territorial constituency (Art 325). No person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of them. The elections to the Parliament and State Legislatures are to be held on the basis of adult suffrage. Every person who is a citizen of India and who is not less than 18 years of age is not otherwise disqualified under this constitution or any law (Representation of People Act, 1950) made by the Legislature on the ground of non residence, unsoundness of mind, crime, or illegal practice, has a right to be registered as a voter (Article 326).

Power of Parliament and State Legislatures with regard to election Law Article 327 empowers Parliament to make provisions with respect to all matters, relating to or in connection with election to Parliament and State Legislature, the preparation of electoral rolls, the delimitation of constituency and all other connected mattes. In exercise of the power conferred by Article 327, Parliament has enacted the Representation of people Acts, 1950 and 1951, the Presidential and Vice Presidential Elections Act 1952 and the Delimitation Commission Act, 1952, Article 328 confers a similar power on State Legislatures. The State Legislature can make laws relating to all the above mattes referred to under Article 327, in so far as provision in that behalf is not made by Parliament.

Courts not to interfere in Election matters - Article 329 says that the validity of law relating to the delimitation of constituencies of the allotment of seats to such constituencies shall not be called in question in any court Clause (b) of Article 329 provides that elections can only be called in question by an election petition presented to such authority and in such manner as may be laid down by law made by the appropriate legislation. In exercise of the power under clause (b) of this Article Parliament enacted the Representation of Peoples Act. 1951. But neither Article 329 (b) nor the Representation of the People Act (before its amendment which said that the decision by order of the Election Tribunal shall be final could restrict the power of High Courts under Article 226, and the power of the Supreme Court under the Article 136.The Constitution (19th Amendment) Act, 1966, abolished the jurisdiction of Election Tribunals over election disputes. The Amendment has vested this power in the High Courts. The effect of vesting the power in the High Courts was to expedite decision in election disputes.

INDIAN PENAL CODE, 1860 Chapter IX-A, (Section 171A-Section 171 I) deals with Of Offences Relating to Election.In the Indian Penal Code the offence of making false statement in connection with election is defined in section 171-G as follow :Whoever with intent to affect the result of an election, makes or publishes any statement purporting to be a statement of fact which is false and which he either know or believes to be false, or does not believe to be true, in relation of the personal character or conduct of any candidate shall be punished with fine. 171-A Candidate, Electoral right. Defined- For the purposes of the Act-(a) candidate means a person who has been nominated as a candidate at any election.(b) electoral right means the right of a person to stand or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.

171-B. Bribery- (I) Whoever-(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right ; or(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery :Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (II) A person who offers, or agrees to give or offers or attempts to procure, a gratification shall be deemed to give a gratification. (III) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing, what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.

171-C Undue influence of elections (1) Whoever, voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section (1) whoever- (a) threatens any candidate, or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub section (1)(3) A declaration of public policy or a promise or public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. 171-D Personation at elections- Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictions name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way commits the offence of personation at an election. [Provided that nothing in this section shall apply to a person who has been authorized in vote as proxy for an elector under any law for the tie being to force in so far as he votes as a proxy for such elector].171-E. Punishment for bribery- Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both:Provided that bribery by treating shall be punished with fine only. 171-F- Punishment for undue influence or personation at an election Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. 171-G- False statement in connection with an election Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine. 171-H- Illegal payments in connection with an election Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees. Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approved in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate. 171-I - Failure to keep election accounts- Whoever being required by any law for the time being in force or any rule having the force of law to keep such accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.

Legal Threads(1) VohraCommittee: 12 bombs blasts that shook Bombay on 13 march 1993, had involved the collaboration of a diffuse network of criminal gangs, police and customs officials as well as their political Patrons, a commission were institutes to investigate the so-called nexus. The report by N.N.Vohra[footnoteRef:16] found such deep involvement of politicians with organised crime all over India that it was barred from publication. Here Vohra observes "the various crime syndicate/mafia organisations have developed significant muscle and money power and established linkage with governmental functionaries, political leaders and other to be able to operate with impunity. As highlighted by the Vohra Committee Our elections involve a lot of black money and it is this use of black money in elections which has also brought about the criminalisation of politics. After all, the story of the Hawala scam started by the police stumbling to the Jain diaries in their effort to trace the money received by the Kashmir militants. The scam brought out the linkage between the corrupt businessmen, politicians, bureaucracy and the criminals. The 1993 Bombay blasts which took away the life of 300 people was made possible because RDX could be smuggled by allegedly bribing a customs official with Rs.20 lakhs. Some 15 years ago Vohra committee submitted its report to curb criminalisation of politics but the fact is that no application in this way is being made. This was mentioned in the petition submitted by the Speaker of Lok Sabha and President of India on 16th may that- The subject of criminalisation of politics is one that concerns the entire nation closely. It is deeply disturbing that on the one hand, our polity is tolerant of fake encounters (summary executions) of alleged criminals and terrorists, while our highest representative body Indian Parliament harbours people caught red-handed in acts of human trafficking, and convicted on charges of abduction and suspected murder. [16: N.N. Vohra committee formed in October 1993. In the first meeting of the Committee held on l5th July 93]

(3) Right To Information Act And Criminalisation Of Politics:- The Court held that the right to information - the right to know antecedents, including the criminal past, or assets of candidates - was a fundamental right under Article 19(1) (a) of the Constitution and that the information was fundamental for survival of democracy. In its Judgement of May 2, 2002, it directed the Election Commission to call for information on affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers on: Whether the candidate has been convicted / acquitted / discharged of any criminal offence in the past - if any, whether the candidate was accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge was framed or cognisance taken by the court of law. If so, requires the details thereof; the assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of the dependents; liabilities, if any, particularly of any overdue of any public financial institution or Government dues; educational qualifications of the candidate. The Right to Information Act 2005 is a historical Act that makes Government officials liable for punishment if they fail to respond to people within a stipulated timeframe. Many public servants are leading luxurious lifestyles, beyond the legal sources of their income. Many public servants are filing false affidavits about their annual income, wealth details to Election Commission of India / Vigilance Commission / other authorities, as the case may be. These authorities are not properly verifying these affidavits. Many scams, scandals are coming to light day in & day out, politicians are accusing each other of involvement in scams. Whereas, the said authorities are keeping mum, as if those affidavits filed by tainted public servants are true. The tainted public servants are not even providing full, right information to public as per RTI Act, lest the truth come out. This seen is very normal now a day that some public servants, caught red-handed during luxurious spending, they easily say that it is at their political partys expense or their well wishers expense. However no entries are found in the account books of said parties to that respect. The law forbids public servants from accepting gifts, hospitality, favours beyond the value of rupees one hundred (Rs. 100), as it may be a form of bribe. But one may ask all these under RTI[footnoteRef:17]. Right to Know is an inherent attribute of every person. Right to know differs only in one sense with right to information. Right to know is a natural right and right to information is a provision given by government to its people. Natural rights do not have any value legally until they are legally considered. Hence right to know as such implied in the freedom of speech and expression which is a legally considered right must have to be given a special value. Right to information as such will bring transparency of the government activities and allow the people to find remedies for those things by which they suffered [17: Sec 8, RTI ACT OF 2005.]

CHAPTER 4 - SUBJECT ANALYSIS

4.SUBJECT ANALYSISCRIMINALISATION OF POLITICS After 60 years of Indias independence the lives of commoners is far worse than under Britishers. The benefits of independence have reached only few, thus creating islands of few ultra rich people surrounded by vast sea of utterly poor. The rich people in nexus with those in power are getting favourable laws enacted to suit their ends. Those in power are shamelessly enjoying 5-star luxuries all at tax payers expense, while more than 50 million are starving to death. The criminalisation of politics, executive & judiciary is almost complete. The corruption has spread its tentacles far & wide, there is corruption from womb to tomb, from maternity hospital to grave yard. The injustices mated out, the atrocities perpetrated by public servants are worse than Britishers. The biggest confounding factor in the political environment of business is criminalisation of politics: people with criminal backgrounds becoming politicians and elected representatives. Around 20% of the members of the current Lok Sabha have criminal cases pending against them. The charges in several of these cases are of heinous crimes such as murder, robbery, kidnapping, and not just violation of Section 144[footnoteRef:18], or something similar. [18: CRPC ACT, 1973]

It is well known that all parties take the help of criminal elements to dominate the election scene in India. But this process is influencing the mind and the will of the people both to gain the majority to rule the country according to their will. The system of democracy is now changing into the dictatorship of some. Because the democracy of India are now in hands of the criminal who are not capable any way to hold the post if legislature and persons known to have a criminal past becoming legislators and ministers has not only become common but is being openly defended by leaders of political parties. A stage has now been reached when politicians openly boast of their criminal connections. A statement made in the assembly by a minister of a north Indian state that he patronised and would continue to patronise gangsters to fight and win elections is an indication of the growing phenomenon where criminal background has become a prerequisite to win elections. Despite the countrywide debate generated by the Vohra Committee Report on criminalisation of politics, the system has changed only for the worse. Earlier in the 1960s, the criminal was content helping (covertly) the politician win the election so he could in turn get protection from him. The roles have now been reversed. It is now the politician, who seeks protection from criminals. The latter seek direct access to power and hence become legislators or ministers. The Election Commissions observation that nearly 40 members of the 11th Lok Sabha and 700 members of the state assemblies had a criminal past proves this. The Election Commissions requirement that the prospective candidates file an affidavit listing the criminal charges they face has hardly made any dent in the growing criminalisation of politics. Some radical reforms in the existing law need to be undertaken urgently. Until this is done, political parties could take some initiative to curb this trend, by denying tickets to politicians with a criminal background. Far from it, party leaders invariably issue tickets to those with a criminal past because they can not only win elections, but also help other candidates win. The Election Commission is powerless in preventing criminals from contesting elections. The Representation of People Act allows it to debar candidates convicted of certain crimes, but cannot prevent those under trial or whose appeals from their earlier convictions are pending for disposal before the higher court for multiple murders or rape or corruption or theft from the public exchequer from representing the people in the countrys highest legislative forums. There have been a number of cases where persons under trial have contested elections, while in jail and won. Unfortunately, no political party has taken any concrete step to curb this malpractice. It is not difficult to see why political parties put up criminals as candidates. Given a situation in which the sanctity of elections is being increasingly undermined by rigging and booth-capturing, a criminal with muscle power has greater chances of winning than a clean and decent individual without such capabilities. And most often criminals do win, which is why they are increasingly present in the countrys representative institutions. The consequences of the trend, if allowed to continue unchecked, hardly deserve an elaboration and are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public. In fact a new dimension has been added to the process by the criminalisation of bureaucracy and the police. What makes the situation particularly dangerous is that a criminalised administration poses a serious threat to the countrys security even as Pakistan-sponsored cross-border terrorism continues unabated. This is clearly reflected in the fact that agents of the Inter Service Intelligence [ISI] have no difficulty in getting passports and driving licenses and carrying out their deadly assignments in India. De-criminalisation of politics should be the main issue in all elections in the country. While political parties have a serious responsibility not to put up criminals as candidates, voters have an equally strong responsibility of defeating candidates with a criminal record. Lately, the Election Commission of India has taken noticeable measures to check criminalisation of politics. It has already banned convicted people from contesting elections to the state legislature or parliament, at the same time; it has asked all criminally-charged persons to disclose all the charges they face, in the nomination paper. This information will be easily made available to the public. Cases pending against politicians should be settled as quickly as possible. It is found that cases against them remain pending for long and they keep winning elections while the cases remain pending. Later, with their ministerial power, they manipulate the cases in their favour. Withdrawal of criminal charges against some tainted ministers of the present government is a case in point. Components (1)MusclePower:-The influence of muscle power in Indian politics has been a fact of life for a long time. As early as in 1977, the National Police Commission headed by Dharam Vira observed: ``The manner in which different political parties have functioned, particularly on the eve of periodic election, involves the free use of musclemen and Dadas to influence the attitude and conduct of sizable sections of the electorate. The Panchayat elections[footnoteRef:19], like other elections in the recent past, have demonstrated once again that there can be no sanity in India as long as politics continues to be based on caste and religion. [19: S.T.Beuria, Panchayat Polls Marred by Violence, A Report in the Deccan Herald Bangalore, 11th July 1992.]

Gangsterism.The politicians are thriving today on the basis of muscle power provided by criminals. The common people who constitute the voters are in most cases too reluctant to take measures that would curtail the criminal activities. Once the political aspect joins the criminal elements the nexus becomes extremely dangerous. Many of politicians choose muscle power to gain vote bank in the country, and they apply the assumption that, if we are unable to bring faith in the community then we can generate fear or threat to get the power in the form of election.(2) MoneyPower:-The elections to Parliament and State Legislatures are very expensive and it is a widely accepted fact that huge election expenditure is the root cause for corruption in India. A candidate has to spend lakhs of rupees to get elected and even if he gets elected, the total salary he gets during his tenure as an MP/MLA will be meagre compared to his election expenses. How can he bridge the gap between the income and expenses? Publicly through donations and secretly through illegal means. The expenditure estimation for an election estimated as Rs 5 per voter as election expenditure, for 600 million voters, and calculation of all the expenses in a general election estimated around Rs 2,000 crore. Then there is the period between elections. This requires around Rs 250 crore. Then there are state elections and local elections. All told, the system has to generate around Rs 5,000 crore in a five year cycle or Rs 1,000 crore on average each year. Where is this money to come from? Only criminal activity can generate such large sums of untaxed funds. That is why you have criminals in politics. They have money and muscle, so they win and help others in their party win as well. Reasons Of This Criminalisation(1) VoteBank:- The political parties and independent candidates have astronomical expenditure for vote buying and other illegitimate purposes through these criminals or so called Goondas. A politicians link with them constituency provides a congenial climate to political crime. Those who do not know why they ought to vote comprise the majority of voters of this country. Therefore majority of the voters are manoeuvrable, purchasable. Most of them are individually timid and collectively coward. To gain their support is easier for the unscrupulous than the conscientious.We have long witnessed criminals being wooed by political parties and given cabinet posts because their muscle and money power fetches crucial votes. Elections are won and lost on swings of just 1% of the vote, so parties cynically woo every possible vote bank, including those headed by accused robbers and murderers. Legal delays ensure that the accused will die of old age before being convicted, so parties virtuously insist that these chaps must be regarded as innocent till proved guilty.(2)Corruption:- In every election all parties without exception put up candidates with a criminal background. Even though some of us whine about the decision taken by the parties, the general trend is that these candidates are elected to office. By acting in such a manner we fail to realize that the greatest power that democracy arms the people is to vote incompetent people out of power.Independence has taken place through a two-stage process. The first stage was the corrupting of the institutions and the second stage was the institutionalization of corruption. As we look at the corruption scene today, we find that we have reached this stage because the corrupting of the institutions in turn has finally led to the institutionalization of corruption. The failure to deal with corruption has bred contempt for the law. When there is contempt for the law and this is combined with the criminalisation of politics, corruption flourishes. India is ranked 66 out of 85 in the Corruption Perception Index 1998 by the German non-government organization Transparency International based in Berlin. This means that 65 countries were perceived to be less corrupt than India and 19 were perceived to be more corrupt.(3) Loop Holes In The Functioning Of Election Commission:- The Election Commission must take adequate measures to break the nexus between the criminals and the politicians. The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts and so on in their nomination papers is a step in the right direction if it applied properly. Too much should not be expected, however, from these disclosures. They would only inform people of the candidates history and qualifications, but not prohibit them from casting their votes, regardless, in favour of a criminal. For the past several general elections there has existed a gulf between the Election Commission and the voter. Common people hardly come to know the rules made by the commission. Bridging this gap is essential not only for rooting out undesirable elements from politics but also for the survival of our democratic polity. This is an incremental process, the rate of success of which is directly proportional to the increase in literacy rate in India. The electorate have made certain wrong choices in the past, but in the future national interest should guide them in making intelligent choices.(4)DenialofJusticeandRuleofLaw: - Criminalisation is a fact of Indian electoral politics today. The voters, political parties and the law and order machinery of the state are all equally responsible for this. There is very little faith in India in the efficacy of the democratic process in actually delivering good governance. This extends to accepting criminalisation of politics as a fact of life. Toothless laws against convicted criminals standing for elections further encourage this process. Under current law, only people who have been convicted at least on two counts be debarred from becoming candidates. This leaves the field open for charge sheeted criminals, many of whom are habitual offenders or history-sheeters. It is mystifying indeed why a person should be convicted on two counts to be disqualified from fighting elections. The real problem lies in the definitions. Thus, unless a person has been convicted, he is not a criminal. Mere charge-sheets and pending cases do not suffice as bars to being nominated to fight an election. So the law has to be changed accordingly. Criminal theories with respect to Criminalisation of politics

1) Humans are creature of conformity who always wants to do the right thing An excellent example of this conformity perspective in criminology is the Strain Theory of Robert K. Merton[footnoteRef:20]. [20: Bartol Curt R. (2001). Criminal behavior A Psychosocial Approach, fifth edition, Prentice Hall Inc.]

Mertons Strain theory argues that humans are fundamentally conforming beings. Most members of a given society desire what the other member of the society desire.For e.g. in America, accumulation of wealth or status is all important.However, its very important to understand that the access or means for reaching these goals are not equally available to everyone in the society. Some have the education, social network, personal contacts, family influence and in some cases might. And some do not have these opportunities.The strain theory predicts that crime and delinquency occur when there is a perceived discrepancy between the materialistic values and goals cherished and held in high esteem by a society and the availability of the legitimate means for reaching these goals.Thus, it can be easily contrasted in the Indian scenario that you will find most of the politicians who are committing crimes are basically criminal turned politicians, who in an attempt to legitimize their power got to politics. People who are educated are comparatively less prone to commit crime rather they will try to stick to democratic means. For e.g. you will find crimes in the political constituencies where there is illiteracy, poverty and no development at all. People from this marginalized areas in search of power resort to might.2) Expectancy Theory Julian Rotter is best known for drawing attention to the importance of expectations about the consequences of behavior. In other words, before doing anything, we ask, what has happened to me before this situation and what will I gain this time?Applying Rotters theory to criminal behavior we should say that when people engage in unlawful conduct, they expect to gain something in the form of status, power, security, affection, material goods or living conditions. It becomes very clear from the above statement that politicians for instance will not hesitate to engage themselves in some unlawful activity if they gain something in return, preferably power or status.3) Imitational Aspects of Social Learning Bandura introduced the idea of, what he called observational learning or modeling, to the social learning process.He contended that much of our behavior is initially acquired by watching others, who are called models. The observed behavior of the model is also more likely to be imitated if the observer sees the model receive an award. Conversely, its less likely to be imitated if the model is punished. Bandura believes much like Rotter that once a person decides to use a newly acquired behavior, whether he or she will maintain that behavior depends on the prospects of the potential gain.Lets understand this principle in the light of our topic. The newcomers in politics will find a model or guru in the political field, and if he follows a politician who has certainly achieved name and money by doing criminal acts, its highly likely that he will also follow the same footsteps.But if people have a good example that committing crime is a very serious mistake in society, people are less likely to resort to criminal behaviour.

ELECTORAL SYSTEM IN INDIA Elections enable every adult citizen of the country to participate in the process of Government formation. You must have observed that elections are held in our country frequently. These include elections to elect members of the Lok Sabha, Rajya Sabha, State Legislative Assemblies (Vidhan Sabhas) Legislative Councils (Vidhan Parishad) and of, President and Vice-President of India. Elections are also held for local bodies such as municipalities, municipal corporations and Panchayati Raj justifications. If you have attained the age of 18, you must have voted in some of these elections. If not, you will have the opportunity to vote in the next round of elections. These elections are held on the basis of universal adult franchise, which means all Indians of 18 years of age and above have the right to vote, irrespective of their caste, colour, religion, sex or place of birth. Election is a complex exercise. It involves schedules rules and machinery. This lesson will give you a clear picture of the voting procedure, as also about filing of nominations, their scrutiny and the campaigns carried out by the parties and the candidates before actual polling. In this lesson you will read about the Election Commission, electoral system in India and also some suggestions for electoral reforms.

ELECTION COMMISSION OF INDIA

The architects of the Indian Constitution attached special significance to independent electoral machinery for the conduct of elections. The Constitution of India provides for an Election Commission of India[footnoteRef:21] which is responsible for superintendence direction and control of all elections. It is responsible for conducting elections to both the Houses of Parliament and State Legislatures and for the offices of President and Vice-President. Besides, it is also responsible for the preparation revision, updation and maintenance of lists of voters. It delimits constituencies for election to the Parliament and the State Legislatures, fixes the election programme and settles election disputes. It performs many other functions related to elections. [21: C. Rajasekhar, Ensuring Free and Fair Elections: Role of Election Commission of India, 26 Indian Bar Review (1999).]

Composition

The Election Commission consists of the Chief Election Commissioner and such other Election Commissioners as may be decided by the President from time to time. Ever since the first Chief Election Commissioner was appointed in 1950, there was no other Election Commissioner till 1989. The Chief Election Commissioner was assisted by a larger number of officials. The Election Commission became a multi-member body on 16 October 1989 when the President appointed two more Election Commissioners. The senior of the two Election Commissioners is appointed as the Chief Election Commissioner. Tenure and Removal Chief Election Commissioner and other Election Commissioners are appointed for a term of six years, or till the age of 65 whichever is earlier. It is important that Chief Election Commissioner and other Election Commissioners should be free from all political interferences. Therefore, even if they are appointed by the President, they cannot be removed by him. And no changes can be brought in the conditions of service and the tenure of office after their appointment. The Chief Election Commissioner cannot be removed from office, except on the grounds and in the manner on which the Supreme Court judges can be removed. However, since the other Election Commissioners and the Regional Election Commissioners work under the Chief Commissioner, they may be removed by the President on his recommendations.

POWERS AND FUNCTIONS OF ELECTION COMMISSION The primary function of the Election Commission is to conduct free and fair elections in India. For this purpose, the Election Commission has the following functions[footnoteRef:22]: [22: Manual of Election Law, 2004, Government of India, Ministry of Law and Justice]

Delimitation of ConstituenciesTo facilitate the process of elections, a country has to be divided into several constituencies.

Constituency - It is territorial area from where a candidate contests electionsThe task of delimiting constituencies is generally performed by the Delimitation Commission consisting of five serving or retired judges of the Supreme Court and the Chief Election Commissioner who is its ex-officio member. All secretarial assistance (at all levels, national, state, district) is provided to the Delimitation Commission by the Election Commission. The Delimitation Commission is constituted by the Government from time to time.

Preparation of Electoral Rolls Each constituency has a comprehensive list of voters. It is known as the Electoral Roll, or the Voters List. The Commission prepares the Electoral Roll for Parliament as well as Legislative Assembly elections. The Electoral Roll of every constituency contains the names of all the persons who have right to vote in that constituency. The electoral roll is also revised from time to time generally before every general election, by-election and mid-term election in the constituency.

Recognition of Political Parties

One of the important functions of the Election Commission is to recognise political parties as all India (National) or State (Regional) Political Parties[footnoteRef:23]. If in a general election, a particular party gets four percent of the total valid votes polled in any four states it is recognised as an all India (National) Party. If a party gets four percent of the total valid votes in a state, it is recognized as a State or regional party. (You will read in details about Political Parties in the following Lesson No.19). The Indian National Congress, the Bharatiya Janata Party (BJP), the Communist Party of India (CPI), The Communist Party of India (Marxist) the Bahujan Samaj Party (BSP) and the Nationalist Congress Party are at present (2006) major recognised national parties. [23: M.V. Pylee, Emerging Trends of Indian Polity 43 (1998).]

Allotment of Symbol

Political Parties have symbols which are allotted by the Election Commission. For example, Hand is the symbol of the Indian National Congress, Lotus is the symbol of the Bharatiya Janata Party (BJP) and Elephant is the symbol of Bahujan Samaj Party. These symbols are significant for the following reasons:1.They are a help for the illiterate voters who cannot read the names of the candidates.2.They help in differentiating between two candidates having the same name.

OFFICERS ON DUTY

To ensure that elections are held in free and fair manner, the Election Commission appoints thousands of polling personnel to assist in the election work. These personnel are drawn among magistrates, police officers, civil servants, clerks, typists, school teachers, drivers, peons etc. Out of these there are three main officials who play very important role in the conduct of free and fair election. They are Returning Officer, Presiding Officer and Polling Officers.Returning Officer

In every constituency, one Officer is designated as Returning Officer by the Commission in consultation with the concerned State government. However, an Officer can be nominated as Returning Officer for more than one constituency. All the nomination papers are submitted to the Returning Officer. Papers are scrutinised by him/her and if they are in order, accepted by him/her. Election symbols are allotted by him/her in accordance with the directions issued by the Election Commission. He/she also accepts withdrawal of the candidates and announces the final list. He/she supervises all the polling booths, votes are counted under his/her supervision and finally result