PUCL Bulletin, September 2002

Politicisation of Criminals

-- By Rajindar Sachar

The unknown Indian was excited on seeing a "rare unanimity" amongst all parties at a meeting on July 8. But that soon vanished when it dawned on him that these "honourable men" (to borrow from Mark Anthony's funeral oration) were aiming to fight the Supreme Court, which had given directions that a candidate should file an affidavit informing the real sovereign, the voter, whether he/she had been charged by a court in any criminal offence up to six months before filing the nomination.

The little man was stunned - neither he nor any of us can understand this hostility to the court. There is a danger of total crirninalisation of politics (I would call it politicisation of criminals): about 700 legislators in the States and 40 in Parliament have a criminal background and some of them are facing trial on charges of murder, extortion.

A situation is being created deliberately to make it appear as if the Supreme Court has trespassed on the privileges of Parliament and is indulging in framing legislation. The charge is without foundation.

All that the Supreme Court has done is to reaffirm that the fundamental right given under Article 19(1) of Freedom of Speech that includes, so far as the voter is concerned, his right to obtain information about the candidate to be selected.

The voter's right to know the antecedents, including the criminal past, of the candidates contesting to be MPs or MLAs is fundamental for the survival of democracy. It should be remembered that this right is not dependent on the whim of Parliament but flows from the citizen's fundamental right under the Constitution. As the Supreme Court emphasised, "the right to get information in a democracy is recognised all throughout and it is a natural right flowing from the concept of democracy".

The Union of India, in the Supreme Court, opposed the issuing of the directions but was unsuccessful. Even after the judgment, the Election Commission went on reminding the Government that it was bound to issue the circular by July 1. The Government, however, asked the Commission to approach the court for extension of time. This the Election Commission rightly refused to do.
Records produced before the Supreme Court showed that the Election Commission had been writing to the Government for over a year to make necessary changes in the law. The Commission in its affidavit filed in the Supreme Court had expressed concern about the criminalisation of politics, about criminals getting elected. Some of them have even 'adorned' ministerial berths.

It had suggested that the candidates should be required to furnish information about involvement in criminal cases - the same kind required by the court's direction.

Even the Vohra Committee Report submitted years ago was kept in cold storage by the Government, notwithstanding the fact that it had warned, "some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, Slate Assemblies and Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people."

Parliament needs to explain why it has kept quiet for so long after the submission of the 170th Law Commission Report (I999). The Law Commission had recommended debarring a candidate from contesting an election if charges have been framed against him/her by a court in respect of certain offences and making it necessary to furnish details of criminal cases, if any, pending against him/her.

The directions meant to cleanse public life requested "each candidate seeking election to Parliament or a State Legislature to furnish information on:

  • Whether they had been convicted/acquitted/discharged of any criminal offence in the past - if any, whether they had been punished with imprisonment or fine?
  • Prior to six months of filing nomination, whether the candidates were accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charges were also framed or cognisance was taken by a court of law.

These can hardly be faulted as they were meant to help the little man (the voter) think it over; whether to elect lawbreakers as lawmakers.

The directions are the core of democracy because as the court said, "true democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views."
It was also unfortunately portrayed at the all-party meet as if the court had, in issuing these directions, acted in disregard of constitutional limitations. The Supreme Court had directly posed this question and answered it by laying down that the Court had ample power to direct the Commission to fill the void and that where there was inaction by the Executive, for whatever reason, the judiciary must step in and exercise its constitutional obligations to provide a solution till such time that the Legislature acts to perform its role by enacting a proper legislation to cover the field; namely to deal with the adverse impact of lack of probity in public life leading to a high degree of corruption.

Indeed the Supreme Court had even 50 years ago disclaimed any idea of confrontation when it gracefully rebuked the Executive, "If then, the courts in this county face up to such important and none too easy task, it is not out of any desire to till at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution".

The voters may rest assured that notwithstanding any legislation that Parliament may pass, it cannot dilute the force of directions issued by the Election Commission because these have been issued to safeguard the voters' right to know as a part of the fundamental right under Article 19, and no legislation can override constitutional provisions.

A self-restrained Parliament should not consider the Election Commission's circular a challenge to its authority and jurisdiction.

I wish the feverish activity and the "rare unanimity" amongst Parliamentarians had, instead, been shown in passing the long pending but eminently desirable legislation such as the Lok Pal Bill, the Women's Reservation Bill and the National Judicial Commission Bill.

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