CRIME AND POLITICS : THE NEXUS BY : P. K. Thakur Contact details: prakutha@hotmail.

com

Nani A. Palkhivala, the eminent constitutional expert observes that I do not think India, in its entire history of five thousand years, has ever reached a lower level of degradation that it has reached now The picture that emerges is that of a great nation in a state of moral decay, of which crime, chaos and corruption are three of the several facets. India at fifty is sick and sad. The body politic appears to be suffering from a multi organ failure, every organ seems to have gone dysfunctional at least in so far as the life of the common man is concerned. The evidence of eroding political order is everywhere. The omnipresent but feeble state, in turn, has indifference, vacillated; its responses have varied over a wide range : sporadic concssions and repression.

The ineffectiveness of repression,

moreover has highlighted the breakdown of the civil machinery intended to enforce the law and maintain order. In order to protect themselves, citizens in some parts of the country have begun to organize private armies. In the words of Atul Kohli, Sooner or later all developing countries become difficult to govern, and over the past two decades India has been moving in that direction. Nothing can be sadder than the Home Minister expressing inability to do anything in the face of lawlessness and the crime and the Prime Minister himself throwing up his hands in utter helplessness in the matter of corruption chaged politicians not heeding his advice to resing, leaders maintaining doble faces and different standards of conduct and saying one thing in public and another in private. The electon process has been largely taken over by criminal elements and money power.

Vohra Panel Report. The much talked report of the Vohra Panel categorically points out that the crime syndicates and mafia organizations have developed muscle and money power and established linkages with governmental functionaries political leaders and others. The report observes: An organized crime syndicate/ Mafia generally commences its activities by indulging in petty crime at the local level, mostly relating to illicit distillation/gambling/organized satta and prostitution in the larger towns In the biggest cities, the main source of income relates to real estate-forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants, etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians The money power is used to develop a network of muscle power which is also used by the politicians during elections. The CBI has reported that the nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The DI B has also stated that there has been a rapid spread and growth of criminal gangs armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrats/ Government functionaries at the local levels, politians, media persons and strategically located individuals in the non-state sector. In this context, the DIB has given the following examples. (i) In certain staes like Bihar, Haryana and U.P, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Government functionaries. Some political leaders become the leders of these gangs/ armed senas and, over the years, get themselves

elected to local bodies, Stae Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardizing the smooth functioning of the administration. (ii) The big smuggling syndicates having international linkages, have

spread into and infected the various economic and financial activieies, including hawals, transactions, circulation of black money and opertions of vicious parallel economy causing serious damage to the economic fibre of the country. These syndicates have acquired substantial financial and muscle power at all levels and yield enough influence to make the task of investigating and Prosecuring agencies extremely difficult even the members of the judicial system have not escaped the embrace of the mafia.

DIB has staged that the network of Mafia is virtually running a parallel Government, pushing the State apparatus into irrelevance The cost of contesting elections has thrown the politicians into the lap of these elements.

Thus , the quintessence of the Vohra committee report is that Crime syndicates florish under political patronage and the politician-criminal nexus was running a parallel government pushing the State to irrelevance.

POLITICIANS OF CIRME AND THE CRIMINALISATION OF POLITICS. L.S.Rathore rightly obseves, Another feature in the political culture of ruling class is the politicization of crime and the criminalization of politics. Politicisation of crime involves the competitive use of anti social forces for the mobilization of party funds for management of elections for organizing meetings and conferences and even for recruiting workers at lower levels from among anti-social elements. It also means the misuse of criminal

intelligence as a political tool for blackmailing political opponents.

Criminalisation of politics means direct entry of criminals into the political parties and legislatures, including Parliament . It also means the use of criminal methods and tactics to influence political processes and procedures. Crooks and criminals and rogues and rascals are increasingly taking over politics. No other vocation yields bigger and quicker returns. Today politics is no longer decent; the hooligans and hoodlums are gaining control of public life. The notorious criminals, history-sheeters,

smugglers and murderers are swarming in politics, they are prowling in search of prey or plunder. Formerly, they were on the periphery of Indian political life, now they have moved considerably towards the centre to manipulate the gears and levers of political machine. The former Bihar Chief Minister Mr. Laloo Yadav, once made a statement in the Bihar Assembly that some members came to the House with arms and that very soon there would be firing in the house if the tendency was not curbed. The carrying of guns into the Bihar Assembly, therefore, reflects the growing criminalization of politics in the State Kuldip Nayar, a renowned journalist wrote in the Indian Express of August 7,1995 that according to the Election Commissioner, 180 out of the 425 members of U.P.Legislative Assembly had criminal records and the last general elections in Bihar were contested by as many as 243 candidates against whom charges were pending . In 1977 the Bihar Assembly had 10 MLAs who were history sheeters, by 1990, there were 40, Marriage Singh, the Chief Minister of Uttar Pradesh expanded his ministry in the last week of October, 1997 by include every defector and criminal who supported him in the Assembly. According to India Today, of the 424 members of the Vidhan Sabha, 132 are suspectd criminals, 16 of them now actually sit in cabinet meetings presided over by kalian. Election Commissioner G.V.G Krishnamurty, while addressing press persons on August, 20, 1997 said as per records 40 members of Parliament have criminal cases pending against them while

nearly 700 members of State Assemblies out of 4,072 are named in criminal cases. According to him it was an international accepted norm that Law breakers cannot be allowed to be lawmakers, which India must also follow. India Today observes, that the teak paneled walls of the 11th Lok Sabha will shelter a host of elected representatives charged with the most brutal of crimes.. Name the crime, and chances are youll find an MP charged with it. Utter Pradesh leads the way. A record 435 candidates with criminal backgrounds stood for election ; 27 of these actually made it to Parliament. Leading the list is the BJP with 14 MPs, though they re charged mostly with petty cass. The SP has 7 MPs with criminal records, of whom 4 are history sheetes. The BSP has 3 MPs named in criminal cases and the Congress one. At the eve of 12th Lok Sabha elections, there were 150 out of 4,708 candidates all over the country, against whom charges of murder, rape, robbery and extortion had been made at one point of time or the other. In spite of the initiative taken by the Election Commission (EC) to debar historysheeters from seeking election to legislatures at least 15 persons with criminal antecedents have made it to the Lok Sabha. As per the Outlook magazine 100 MPs in the 14th Lok Sabha have criminal charges against them. Of these five score MPs across the political spectruth roughly one third can be described as those involved in heinous crimes. A dozen have murder charges against them another 10 have been charged with at tempted murder . perception, known as dons. India Today observes, The NDA has 37 MPs with criminal charges. Of 138 BJP MPs, the EC lists 26, about 20 per cent with criminal charges. Out of 145 Congress MPs, 15 close to 10 per cent, have criminal charges against them . The RJD has 40 per cent MPs with criminal hangs while the BSP has over one third tainted MPs. Around 11 of these are in public

Prabhunath, Shahbuddin, Surajbhan and Soren have one thing in common. They all are MPs with criminal charges against them. In a cruel irony, all of them display utter contempt for the law and make mockery of justice, break the law with impunity and even get away with it. Criminalisation of politics has become an all pervasive phenomenon. At one time politicians hired with criminals to help them win election by booth capturing. Today those same criminals have begun entering Parliament and the state legislatures. Statistics testify to the changing nature of Delhi politics out of 820 candidates contesting the 70 Assembly seats ( in November 1998 Assembly elections) a staggering 172 or over 20 percent, have criminal records. Eighteen are classified to dreaded criminals ; another five are registered bad characters with elaborate history sheets. Their affiliations span across the party divide.

DELHI ASSEMBLY ELECTIONS (NOVEMBER 1998) Total candidates With Criminal Records Sitting MLA with Records Party affiliations of 18 most dread Congress BJP JD Independents Others Let us take the cae of Dhanbad. It is a well known fact that there are organized gangs in the Coal belt of Bihar, polularly referred to as the Coal Mafia, which support a massive extortion racket and indulge in every sort of crime. They continue to function because of political support. 820 172 31 3 1 2 6 3

In a much more publicized form we see similar things in Mumbai, where Indias largest city is also the base for Indias best organized crime. It is shamed that gangsters can extort money, take over land, decide on issues of tenancy and even kill those who oppose them in what was once the best policed city in India. Can this happen unless the top politicians, officials and police are partners in the ravages of criminal gangs ? Thus the public perception, built over the years, is that politicians and criminals have come to join hands. Politics has been criminalized and crime has been politicized. The major cause for this of course is the decline in the quality of people now taking to politics. Gone are the days when the MLA or MP was considered as one of the great gap-closers in Indian politics and worked as a catalytic agent between the masses and the party or Government; instead he is a potential blackmailer or wheeler dealer politician. Gone are the days when stalwarts like K.Kamaraj, Jawahar Lal Nehru, Sardar Vallabbbhai Ptel, Shyama Prasad Mukherjee, Lal Bahadur Shastri were often people with high integrity strong commitment and dedication to the public cause. Peoples expectations of their representatives have changed, says Professor D.L. Sheth, a political Scientist at the centre for studies of Developing Societies. Bourgeois morality has been rejected. They now want a broker operator as their representative rather than a clean man who may otherwise be ineffective. The image of the NEA it seems, has been appropriated by someone who can deliver, how he does so is not a issue. Describing this phenomenon as the marketisation of power, sheth says the middlemen politician has come of age in the business of electoral politics. Acquisition of power only enhances the middleman S ability to deliver. Most of those who held high offices under Indira Gandhi were men and women of straw; she did not encourage the really able perhaps to further

her dynastic ambitions. Meanwhile, there were other types entering politicslumpens and gangsters. They first emerged in West Bengal where almost all political parties from the Congress to the CPI(M) used them in the politics of violence that gripped the State from 1967 to 1972. The state also witnessed the first major exercise in rigging in the March, 1972 mid-term Assembly elections. From West Bengal, the politics of violence and electoral rigging spread to Bihar and Utter Pradesh which became front rankers in the business. When violence, rigging and booth capturing became the idioms of politics, the advantage passed on to those who could either resort to it themselves or get others to do it on their behalf. Many gangsters soon

realized that instead of helping others to become ministers and legislators for money, it was better to become either themselves. They could then not only mock at the police but plunder the State whose functions have multiplied. Until 1967, criminals were helping their political masters. Then they began to seek power themselves says former Bihar Director General of Police D.N.Sahay. Stoking their ambitions was the culture of lumpenisat in introduced by Sanjay Gandhi during the Emergency. The nexus got crystallized and institutionalized., says Sahay. Result : entry of criminals into the legislature. Rathore observes, So brutalized has become politics today that we are handing over the country to underworld. The day is not too far when India shall have a new generation of ruling class led by these buccaneers and criminals; and that day is too near when the gangsters are going to take giant strides in politics. EFFORTS TO PREVENT ENTRY OF CRIMINALS INTO POLITICS Criminalisation of politics is worrying because Parliament is losing its credibility, says the CPI Indrajit Gupta. Jai Pal Reddy, the JD leader says, All parties have a nexus with criminals. The links just differ in degree from

party to party and in nature from State to state. Vijay-Joshi, an economist and fellow of the Merton College at Oxford University observes, In India, the crime politics nexus goes beyond politics. Its not a scramble for power, its for what power can do. In fact, the nexus runs so deep and so wide that it ensnares virtually every mainstream party in every state. In the words of Justice V.R.Krishna Iyer, corruption in public life begins with money in elections. Our system of elections is beset with money and muscle power and both are readily available with the under words. Although our election laws recognize the danger of illegitimate money entering the political stream and section 77 of the Representation of People Act puts a limit on election experiences incurred by a candidate. But there is no provision in the legislation to regulate the flow of unaccounted funds into the coffers of political parties. As a result, the use of unaccounted money in elections has become a fact of life . In the beginning, industrial houses and big businessmen had financed political parties. While this practice

continued, it was supplemented by kickbacks and commissions received from foreign transactions. The experts are of the view that if legitimate

money is not available to political parties to fight elections, they have to depend on other sources of income. Perhaps, state financing of elections which has been a thorny issue in India, is worth giving a chance. practice is followed in Germany and the United States. In a far reaching decision, the Election Commission on August 28, 1997 ordered that no convicted person will be allowed to contest elections even if an appeal against the conviction was pending in a higher court or the person was on bail. The order makes it mandatory for the returning officers to take note of the legal position at the time of scruting of nomination papers of the candidates and decide accordingly on its validity. Under the new order the Commission has asked returning officers to get sworn affidavit from candidates mentioning whether the contestant has ever been convicted, The

nature of offence, punishment imposed, period of imprisonment and other relevant details. In its directive to the Chief Electoral Officers, the Commission observed, The disqualification of candidature for elections under section 8 of the RPA, 1951 would commence out on bail or not. from the date of

conviction, regardless of whether the person intending to be a candidate is However, sitting members of Parliament and State Legislatures, who have been convicted but are on bail, will not be covered by this order. Justice M.B. Shahs judgement in the Election Reforms case decided on May 2, 2002, struck a blow for Indian democracy by giving detailed instructions on the right of an Indian voter to know full details about the persons who stand for election. On June 28, 2002, the Election Commission implemented the Supreme Courts order within the allotted time frame of two months. On May 14, the Commission wrote to the Government to amend Forms 2A to 2E of the conduct of Election Rules, 1961 dealing with nomination papers and included drafts of the revised forms . On May 28, the Commission issued its order requiring each candidate to furnish information to the Returning Officer on (i) past criminal convictions (ii) pending criminal cases carrying a convictions of more than two years (iii) assets (iv) liabilities (especially public dues) and (v) educational qualifications. The Supreme Courts judgement is based upon two premises : the citizens right to know and of informed voting under Article 21 and Election Commissions power and duty under Article 324 to superintendent elections. Surely every voting citizen has a right to know background details about a candidate which cannot and should not be hidden from the electorate. If candidates are afraid of their own background, they have no business to enter public life. The Supreme Court has not invented all this out of its own juristic back pocket without grounding its judgment within the

framework of the Constitution. There is sufficient precedent on both the right to know as well as the powers of the Election Commission. Way back in 1978, Justice Krishna Iyer in Gills case (1978) spoke of fair elections being hijacked by mob muscle methods and subtle perversions. The Symbols Order case (1985) and the Electronic Voting case (1984), recognized the residuary powers of the Commission in the matter of elections. In the Common Cause case (1996), the Supreme Court judicially noticed that political parties spend over Rs 1000 crores on elections and that nobody discloses the source of the money. The Election Commission was reminded that it had the power to preserve the purity of elections. In the Vohra Committee case (1997), the Court noted the nexus between money, muscle and power at all levels of governance, Politicians from all parties entered into a conspiracy to defeat these right for the voters. The Government responded with an elaborate Bill to (a) half-heartedly implement the Law Commissions proposal to disqualify those against whom a serious criminal charge had been drawn up ; and (b) implement the Supreme

Courts directive in a hugely truncated way. But even these proposals of the Government were not acceptable to the politicians, their friends and opponents. What emerged was an ordinance that totally nullified the voters right to know about the assets and educational background of the candidates. The proposed ordinance also contains skewed and incomplete provisions on the criminal backgrounds of those standing for election. Assets of elected members were to be disclosed to the Assembly and Parliament, which has nothing to do with the voters right to know. No less, the Government backtracked on its own proposals to disqualify those charged with criminal offences but not convicted of the same. The President, A.P.J.Abdul Kalam, rfused to sign the ordinance in exercise of his once-onlyrefer-back power. Without even an explanation, he was peremptorily over ruled; and made to sign the ordinance.

ROs cite RPA provisions : Jayalalitha disqualified (April 2001) The nomination of the former Chief Minister and AIADMK general secretary Mrs. Jayalalitha, for the Tamil Nadu Assembly election ( to be held in May 2001) was rejected in all the four constituencies where she has filed her papers. The returning officers for the four constituencies- Andipatti, Krishnagiri, Pudukottai and bhuvanagiri-cited her conviction for three years for corruption in the TANSI land deal case and declared her papers invalid. DECLARATION OF ASSETS, ANTECD MUST : THE SUPREME COURT.

On May 2, 2002, the Supreme Court declared the votes right to know a candidates criminal antecedents, educational qualifications and assets and liabilities. No sooner was this given effect to by the Election Commissions order of June 28, 2002, politicians were u in arms. Legislation was enacted to replace the ordinance of August 24, 2002, which the President, A.P.J.Abdul Kalam, had reluctantly signed , and to upset and dilute the Supreme Courts order- with a specific provision ( Section 33B) mandating that the Court and the Election Commissions order be ignored. The legislature made supplying information about educational qualifications redundant. Information about assets and liabilities was not to be disclosed to the voter, but only by successful candidates to the Speaker and Chair of the house after the election. The voters right to know was no longer pivotal and was reduced to knowing whether the candidate had been charged with an offence which carried a prison term of more than two years or convicted and sentenced to imprisonment for a year or more. This was not what the Supreme Court had in mind. The stage was set for a confrontation. On March, 13,2003, the Supreme Court quashed part of the legislation to simultaneously restore both its own and the Election Commissions order of May-June 2002. With this, the contours of the voters right to

know are now defined by the Supreme Courts judgement and not by Parliaments law. The bench held that a voter has a fundamental right to know the antecedents of a candidate and the is right was independent of the statutory rights under the election law. Further, a voter is first a citizen of this country and apart form statutory rights, he is having fundamental rights conferred by the Constitution. The Bench said that It is true that legislature is entitled to change the law with retrospective effect which form the basis of a judicial decision. This exercise of power is subject to constitutional provisions and , therefore, it cannot, enact a law which is violative of fundamental right. The Bench held that Section 33B on the face of it was beyond the legislative competence, as this court had held that voters had a fundamental right under article 19 (1) (a) of the Constitution to know the antecedents of a candidate for various reasons. It pointed out that the amended Act does not wholly cover the directions issued by the Court. On the contrary, it provides that candidates would not be bound to furnish certain information as directed by the Court. Mr. Justice Shah observed that members of a democratic society should be sufficiently informed so that they might cast their votes intelligently in favor of persons who were to govern them. He said the right to vote would be meaningless unless citizens are well informed about the antecedents o a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to change our democratic governing system and to have competent Legislature, he said. Mr. justice Shah said the legislature could remove the basis of a decision rendered by a competent Court, thereby rendering all

decisions ineffective given by the Court.

but a legislature has no power to ask the

instrumentalities of the State to disobey and disregard the decision

We sincerely hope that this judgement will pave the way for purity in electoral process and further strengthen democracy.

Conclusions It is unfortunate that no countervailing force to check criminalization of politics is emerging . In receipt court orders ranging from Supreme Court to High Courts to lower courts the judiciary has been busy stumping the criminal politician, quashing his bail applications, ordering his arrest warrants and sending him to join from hospitals. Unlike the campaign against tainted ministers in Parliament, this battle is neither partisan nor for each fingeraccusing the rival three points towards you. In spired by this bold new brand of judicial activism, Chief Election Commissioner T.S.Krishnamurthy has in a recent letter suggested to Prime Minister Dr. Manmohan Singh a set of poll reforms proposing that anyone charge-sheted at least six months before elections should be barred from contesting elections. In our considered opinion, a person who is facing trial in a serious offence, if kept out of electoral fray till be is exonerated of the charge, should not have a legitimate grievances, as such restriction on his right to contest elections would be a reasonable restriction in the greater public interest and for bringing sanctity t the august Houses which are the supreme law making bodies of the country. The historic Resolution passed by the Lok Sabha at the special session of Parliament on the occasion of the golden jubilee of independence, August, 26 to September, 1,1997 observes. The meaningful electoral reforms be carried out so that our Parliament and other legislative bodies be

balanced and effective instruments of democracy and further that political life and processes be free of the adverse impact on governance of undesirable extraneous factors including criminalization.

REFERENCES 1. Nani A.Palkhivala, Squandered Legacy. August 15, 1997. 2. Atul Kohli, Democracy and Discontent (Cambridege University Press, 1991) 3. Ibid p.4 4. Government of India ( through its order No. S/7937/SS(ISP), dated 9th July, 1993) established a Committee under the Chairmanship of Mr. N.N.Vohra, then Home Secretary to take stock of all available information about the activities of Crime Syndicates / Mafia organizations which had developed links with and were being protected by Government functionaries and political personalities. The version of the report is presented to the Parliament. 5. Vohra Committee Report ( Ministry at Home Affairs). The Indian Journal of Public Administration ( Special Number). July- September 1995, P.641 6. Ibid 7. Ibid. P.642 8. Ibid P. 643 9. L.S. Rthore, Political Culture of Indias Ruling Class ( Presidential Address)-XII Rajasthan Political Science Conference, December 4-54, 1989 P.9. 10. ibid, pp.9-10 11. Kuldip Nayar. The Vohra Report- Sparing the Culprits Indian Express, August 7, 1995 The Hindustan Times,

12. India Today, November 10, 1997. p.34 13. The Hindustan Times, August, 21, 1997 14. Ibid 15. Harinder Baweja, Changing Face of Parliament. India Today, July 15, 1996 p.44 16. The Hindustan Times, June 27, 1998 17. Outlook, June 21, 2004, pp. 32-36 18. India Today, August 9, 2004, pp. 28-29 19. The Hindustan Times, Novembe 23, 1998 20. L.S.Rathore n.10.0.10 21. The Hindustan Times, August 29, 1997 22. The Hindu, April 25, 2001 23. India Today, August 9, 2004, pp. 28-29 24. Election Commission of India- Agenda and Notes. Meeting with recognized National and State Political Parties ( April 29, 2000) pp. 21-23 25. The Hindustan Times, September, 2, 1997.