CRIMINALISATION OF POLITICS IN INDIA AND LEGISLATIVE

APPROACHES: AN ANALYSIS

SUBMITTED BY

Rishabh Sen Gupta

UID: SM0116036

Faculty-in-charge

Mr. Himangshu Ranjan Nath

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM.

1
 TABLE OF CONTENTS:

1. Introduction
1.1 Overview
1.2 Aim(s)
1.3 Objective(s)
1.4 Scope and Limitation
1.5 Literature Review
1.6 Research Questions
1.7 Research Methodology
2. What is Criminalization of politics?
3. Components of criminalization of politics
4. Linkage between politician and criminals
5. Free and Fair Elections
6. Legislative and Judiciary Response to Criminalization of Politics
7. Jayalalitha’s case in view of the representation of People Act, 1951
8. Conclusion
9. Bibliography

2
 INTRODUCTION
Abstract
India is a country with 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. Empowerment
implies free and fair polls. A good election translates into good governance, as it reflects true
will of the people and, therefore, empowerment of India. The criminalization of politics and
corruption in public life has become the biggest threat to India, the world’s largest democracy.
It is here, that the country needs to be vigilant to ensure that its parliamentary system is not
hollowed by the criminalization of the political, as well as of its electoral political processes.

1.1 Overview

Man, being a gregarious animal, deserves to have his own way to think and act as he likes and
at the same time, everyone cannot have his own way, because he lives in society. One’s desire
conflicts with those of another. The relation of the individual member of society with one
another, therefore, needs regulation by the government. When a body of people is clearly
organized as a unit for purposes of government, then it is said to be political. Criminalization
of Politics derives its root from the defects in the political system. The political system which
comprises of the politicians and voters, is responsible for this evil that has deepened into our
society.1

Criminalization of politics has become an enduring phenomenon in Indian politics. It is crucial

to discuss this because it is against the very spirit of democracy. A rule that was meant to be
governed by law has rather ended up being a rule of money and muscle power. What is even
more shocking is the acceptability of these elements both by the political entities and the
masses, which means that it is people’s mandate acting against the values of democratic system.
We can thus say that democracy has become the contradiction of democracy. This leads to the
negation of all the democratic safeguards provided by our constitution; that is, the three organs
which were supposed to keep a vigilant check on each other - legislature, executive and
judiciary are being weakened and its roots are corrupting. Criminalization of Politics derives

1
B. B. Tandon, “When you go to vote, no criminal, no malpractice” , http://www.mdia
rightsonline.com/Sabrang/india7.nsf/7215f99d277175f3e5257713005df697/71bf92896d94ecfle5257085008363
17?OpenDocument, accessed on April 30, 2018, at 10.04 pm

3
its root from the defects in the political system. The political system which comprises of the
politicians and voters, is responsible for this evil that has deepened into our society.2 It gives
rise to a kind of situation where there is a great dearth of erosion of value, organized valuations
of norms, rules and principles, death of security of life, liberty and property lack of transparency
and accountability, dominance of muscle power and black money, plundering of resources
rampant corruption, denial of justice and of Rule of Law, contraction of popular sovereignty,
lending to the underworld, an opportunity to establish substantial control over political process.
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 a good governance.

This extends to accepting criminalization of politics as a fact of life. Political parties are not
above the Rule of Law to ensure electoral victory. But, the fact that there is no public outcry
against the fielding criminals as candidates, encourages the political parties to opt for criminals
who ensure electoral victory through muscle power.

1.2 Aim (s)

The present work intends to analyze the problem of criminalization of politics and its effect on
the various issues and institutions relating to working of the government and soci-political life
of the country.

1.3 Objective (s)

1. To study the concept of criminalization of politics

2. To analyze the reasons of entry of criminal elements in Indian politics

3. To study the provisions of various legislative enactments like the Representation of the
People Act, 1951, the Prevention of Corruption Act, 1988, the Indian Penal Code, 1860, the
Right to Information Act, 2005,

4. To analyze whether the provisions of these acts are sufficient to curb this problem or some
type of restructuring is required in them.

5. To study case laws related to criminalization of politics

2
B. G. Vergheese, “Criminals In Politics Keep them out of public life”
http://www.tribuneindia.com/2005/specials/tribune_l25/main7.htm, accessed on April 30, 2018, at 10.58 pm

4
1.4 Scope and Limitations

The scope of this paper is limited to the study of criminalization of politics in India.

1. 5 Literature Review

1. M.P Jain, ‘INDIAN CONSTITUTIONAL LAW’, 7th ed. 2014, Lexis Nexis , New Delhi

A very brief statement about the problem of criminalization of Indian politics in context a
person’s right to freedom of speech and expression. In his books he has attempted to draw the
attention to the relation between criminalization of politics and freedom of speech and
expression and how the problem of criminalization of politics violates a person’s right to
freedom of speech and expression and thereby weakens the democratic edifice of the country.
He has also made a very brief analysis of the various case laws relating to criminalization of
Indian politics in relation to freedom of speech and expression.

2. P.D.T Achary, ‘LAW OF ELECTIONS’ , 1st ed. 2004, Bharat Law House, New Delhi

In his book he has presented a picture of elections and of various laws relating to elections.
According to him, elections to be meaningful have to be free and fair. In a large country like
India where thousands of candidates and a large number of political parties and electorate are
involved in the process of elections, the machinery responsible to conduct the elections has a
great responsibility to conduct free and fair elections.

3. Justice V.R Krishna Iyer, ‘LAW & LIFE’ , Reprint ed. 2015 Universal Law Publishing,
New Delhi

He has tried to analyse the Indian democracy and the electoral process very closely. He has
clearly mentioned the importance of the election and the power of the vote in a democratic
system. The work states that Indian Parliamentary Democracy was initiated from the British
system. He further said that the Indian electoral system is not free and fair. It provides scope to
the criminals to enter into the floor of the Legislature. The criminals are habituated to show
their Muscle power instead of power of their wit which they completely lack. They are always
in search of an opportunity to create disorder, pandemonium in the House. By such actions the

5
M.Ps and MLAs have brought a bad name to themselves by throwing all the Democratic norms
to winds. Justice Iyer further submitted that in India those in government are so preoccupied
with the struggle for survival in power that they have no time for addressing their attention to
the problems of the people.

1.6 Research Question

1. What are the various causes for the growth of criminalization of politics?

2. How far the government agencies, judiciary and the various other non-governmental
institutions have been able to curb criminalization of politics?

1.7 Research Methodology

In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library based study, which means that the materials needed by a resources are
available in libraries, archives and other data bases. Various types of books were used to get
the adequate data essential for the project. The researcher also used computer to get important
data related to this topic. Several websites found to be very useful to better understand this
topic.

6
 WHAT IS CRIMINALIZATION OF POLITICS?

The direct entry of criminals into the political parties and legislature, including parliament
through elections and the use of criminal methods and tactics to influence political processes
and procedures is an attempt to criminalize politics of a society. The politicians are thriving
today on the basis of muscle power provided by criminals. The common people who constitute
the electorate are in most cases reluctant to take measures that would curtail the criminal
activities.

Once the political aspect joins the criminal elements,' the nexus becomes extremely dangerous
and which in turn threatening the growth and development of the country. Criminalization of
political process is really a disturbing development for the successful working of Indian
democracy. The role of criminal element in politics is on the increase because of its active
participation in politics. These days smugglers and hardcore criminals have joined politics and
some of them successfully contested elections. According to Hon’ble Justice H.R Khanna
scores of legislators in Bihar have been those persons whose names are found in police records
because of their nefarious activities.3

In Bihar in 1997 elections as many as 67 politicians with criminal background were elected
who were Janata party members.4 This effects the functioning of Indian democracy adversely.

Criminalization of politics derives its roots from the defects in the socio political systems.
Religion, Caste, absence of political accountability and the influence of various interest groups
and money do play a role in influencing the growth of criminalization of politics and this all
have been possible mostly due to the fact that people are not been able to appreciate the power
of vote and that has happened because of a number of influencing factors. This problem is very
much evident from the fact that Indian democracy is more than 60 years old and the percentage
of electorate who goes to poll at the time of election hardly crosses 60%. In this context the
role of Election Commission of India and various laws relating to elections such as
Representation of Peoples Act 1951, Conduct of Elections Act 196l and also The Right to
Information Act etc. are somewhat not up to the expectation.5 Although the Commission has

3
3 http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/9/09_chapter%201.pdf accessed on 5
November, 2018 at 5.47 p.m.
4
Ibid
5
Election Commission of India Report, 2004

7
taken many steps to curb criminalization of politics, it has not yielded the desired results. The
Commission needs to be armed with more powers than it has at present then only it can be
expected to carry out its functions effectively as desired by the Constitution of India. And,
lastly the role of media is also very commendable in curbing the criminalization of politics.
During the elections the role of media assumes much more significance and relevance due to
their role of informing the public at large about the political parties, their manifestoes and
exposing their electoral malpractices. But for many a reasons the media is also not been able
to perform its fundamental duties. Thus, the problem of criminalization of politics and the rapid
declination of political ethics is not the result of one cause but it is a culmination of various
reasons as stated above.6 No democracy can be a full blown one from the beginning. It has to
evolve its own forms depending on the genius of the people, their experiences, their ideas and
visions. A democracy is always in the process of being created, a nation can have a democracy
if only its contents are being supplied to it by the people through their experiences and good
conscience. This country has a history of more than 50 years of freedom struggle and more
than 60 years of independence which our forefathers have given us by shedding their blood has
passed but still we are not being able to understand the core issues of good governance. There
is an urgent need to strengthen the democratic institutions and practices that are being followed
by the ruling elite.

6
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/9/09_chapter%201.pdf accessed on 5
November, 2018 at 6.15 p.m.

8
 COMPONENTS OF CRIMINALIZATION OF POLITICS

Muscle Power

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.7 The Panchayat elections, like other election 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.
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.8 Once the political aspect joins the criminal elements the
nexus becomes extremely dangerous. Many of politicians chose 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.
Money Power
Money power is so closely connected with the elections in India. Elections in India are
expensive. The political parties are collecting party funds to meet election expenses. This is
leading to political corruption in turn is leading to bureaucratic corruption. The political parties
are not maintaining the regular accounts of the party funds and donations received and the
expenses incurred by it. Such accounts are not audited by any regular audit body. 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 meager compared to his election expenses.9
The Election Commission in its report made some important suggestions to curb money power
in elections, namely,
a) that a limit be imposed on the number of vehicles that may be used for elections;
b) that procession and demonstrations to banned during elections;

7
http://carnegieendowment.org/2017/01/16/why-money-and-muscle-still-rule-in-indian-politics-pub-67702
accessed on November 5, 2018 at 8 p.m
8
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/9/09_chapter%201.pdf accessed on May 1, 2018
at 8.15 p.m
9
Ibid

9
c) that use of peripatic loudspeakers on roads be prohibited;

d) that no paid canvassers be allowed;

e) that parties be made to account for expenses incurred by them in promoting the election of
particular candidates

This problem can only be curbed if it is accepted in principle that all expenses ought to be
legitimate charge on public funds.

Booth capturing in elections

Free and fair elections are an integral part of democracy without any disturbance like booth
capturing, rigging, and others. The political parties maintaining antisocial elements at the time
of elections in a large scale for the purpose of booth capturing and rigging activities. The
persons having criminal records should not be allowed to contest in the elections even to file
nominations for the elections. The Election Commission and the Government have to bring
into force some resolutions to avoid that violation of certain important provisions of the model
code of conduct in the light of Commission’s experience.

Political Culture in India

A banal remark has been in frequent use in Indian politics since last few years that “innocent
until proved guilty.” This has become a boon for the criminal-politicians because investigations
can always be manipulated and notorious judicial delays ensure that even the worst criminals
are not convicted for decades. Lack of ethics or values in Indian politics, generally all major or
minor political parties in India used to play blame game, instead of finding a collective solution
of the problem. The significance of ethics in politics of India may be explained by mentioning
“Omar Abdullah episode” happened in J&K legislative assembly. On 28th July 2009, Jammu
and Kashmir Chief Minister Omar Abdullah resigned on moral grounds from the post after a
senior PDP leader alleged that he was involved in the Srinagar sex scandal.10

There was high drama in the Assembly when Abdullah said he would step down and not return
till the allegations were proved wrong. Members of his party, National Conference, surrounded
him and tried to physically stop him from leaving. Congress in-charge of the state Mr Prithviraj
Chavan had tried to stop Abdullah and asked him not to resign. Most noticeable thing during

10
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/9/09_chapter%201.pdf accessed on 6
November, 2018 at 8.15 p.m

10
this whole episode was reactions which, came from political lobby of India. Many senior and
prominent politicians in Indian politics declared Omar Abdulla an emotional and immature
fellow because he resigned on the civil or moral grounds. It clearly shows that resigning on
moral grounds in India considered as an act of foolishness. Does it mean that Railway Minister
Lal Bahadur Shastri during Nehru regime, who gave his resignation on moral grounds after a
rail accident, was an emotional? Therefore, this tendency of enjoying the power without
corresponding responsibility & accountability is one of the major reasons for growing
criminalization of politics.11

11
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/9/09_chapter%201.pdf accessed on 1
November, 2018 at 8.15 p.m

11
 LINKAGE BETWEEN POLITICIAN AND CRIMINALS

In India large numbers of cases have come to the light to indicate that the unholy alliance
between the politicians and the criminals have reached an alarming state. In many cases like
Umeshwar Prasad Singh, a Congress MLA from Colonelganj consistuency in Gonda district,
UP even though he had several criminal cases against him got elected in 1980 and 1985
Assembly Elections.12

Md. Shabuddin who has several criminal cases against him was given ticket from Siwan
Constituency, Bihar for Parliamentary elections by RJD.13 Criminals are found to be aided and
abetted by politicians. The nexus between them has become a pervasive reality. Politicians are
foster mothers of the criminals. Criminal activities are carried on under the patronage of
administration and politicians. The money thus acquired by mafia is shared among partners.
This money is also used by mafia in building contacts with administrators and politicians. It is
also with this money that a network of muscle power is built, which at times is used by
politicians for their election and other purposes. In India politician - criminal nexus has
extended maximum support to each other for building an exclusive, inaccessible empire of their
own.14

Criminalization of politics is a facet of corruption. Sri N.N Vohra, Union Home Secretary in
his report on the issue of politician criminal nexus has observed “A network of mafias is
virtually running a parallel government pushing the state apparatus into irrelevance”.15

In 1951, A.D Gorwala a highly responsible civil servant in his official report as early as 1951
made two observations -(i) quite a few of Nehru’s ministers were corrupt (ii) the government
went out of its way to shield its ministers. Corruption charges in cases like Mudgal case (1951),
Mudra deals (1957-58), Malaviya-Sirajuddin scandal (1963) and Pratap Singh Kairon case
(1963) were leveled against the congress ministers and Chief Ministers but no Minister
resigned.16

From this it is found that criminalisation of politics has become a headache for Indian
democracy. It is shameful to admit that in the world’s largest democracy the cult of the Goondas

12
Ibid
13
Ibid
14
Crime and Politics, The Mili Gazaette, Vol. 18, Issue 26, December 22, 2001
15
Report of “National Commission to Review the Working of the Constitution”, Government of India 2001
16
Ibid

12
prevails. Goondas and criminals are hired to capture booths and kill political rivals. In this way
the entire democratic process is negated.17

Political parties are solely responsible in criminalisation of Indian politics by picking up known
criminals as candidates. Political parties nominated and rewarded such persons with ministerial
office. No major party is exempt from this behavior. Evidence points to the fact that criminals
are not only surviving but actually thriving in politics.

The nexus between criminals and politicians runs deep and wide in India. It ensures virtually
every mainstream party in every state; the links may differ from party to party and in nature
from state to state. In India the crime politics nexus goes beyond politics. Today, politicians
accused each other of hiring criminals to kill their rivals. The criminals are fighting elections
providing finance to politicians and political parties, becoming M.Ps, M.L.As and ministers.
Gone are the days when the criminals were a pawn in the hands of politicians. The position is
practically reversed today. It is the criminals who are using politicians and political parties as
instrument for their personal advancement. All political parties have link with the underworld.
It has played a very prominent role in all elections and in the administration. Virtually our
democracy has turned into a government of criminals by the criminals and for the criminals.
The best way to survive in politics is to acquire a criminal connection.18

In Assam, links between Bhrigu Phukan Home Minister in P. Mahanta cabinet (1985) and
ULFA militants are well known. When the question of searching the houses of 18 ULFA
militants were raised by the police in Barpeta district, the Superintendent of police was given
a list of these persons and was directed not to conduct searches or to arrest them.19 Chief
minister P. Mahanta had publicly accused Phukan of being hand in glove with ULFA militants.
In other states of North-East politicians including some ministers and Chief Ministers are well
known to have links with the underground rebels.20

17
S. Singh, Project report on “Criminalisation of politics in India -A study of politicians in the 15* Lok Sabha”
NLIU Bhopal, (2Q10) accessed on May 1, 2018, http://www.scrihd.com/dac/2Q133814
18
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/10/10_chapter%202.pdf accessed on 6
November, 2018 at 7 a.m.
19
http://shodhganga.inflibnet.ac.in/bitstream/10603/116198/13/13_chapter%205.pdf accessed on 1
November, 2018 at 8 a.m.
20
Ibid

13
 FREE AND FAIR ELECTIONS

Role of Election Commission & Political Parties

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 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.

In a democratic polity election plays a significant role. It is through elections that the mandate
for forming the government is determined, the political leadership for controlling the nation is
selected, the public opinion on various issues is ascertained and the law makers are chosen.
Election is the formal process by which voters make their political choices on public issues or
candidates for public office. The use of elections in the modem era dates to the emergence of
representative’s in Europe and North America since the 17th century.

The road to politics of the criminals is the elections. It is elections through which the political
parties create nexus with the criminals by providing tickets to them. With their money and
muscle power they manage to get elected in the election and this is how the electoral politics
has been criminalized which in turn criminalized the Indian politics. One of the most important
features of a democratic polity is elections at regular intervals. Elections constitute the signpost
of democracy. Criminalisation of politics has a very bad effect on the society and on almost all
institutions. Criminalisation of politics slowly and steadily paralyses the socio economic and
political systems of the country.

The Constitution makers of India realizing this fact inserted Article 324 into the Constitution
ofIndia.16 Article 324(121) of the Indian Constitution provides for establishment of an
independent authority known as Election Commission of India. The Election Commission of
India is entrusted with the duty of regulating the entire process of election in India. It is also
the responsibility of the Election Commission to prepare the electoral rolls for the elections. It
has all the incidental and ancillary powers to effectuate the Constitutional objectives and

21
The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of,
all elections to Parliament and to the Legislature of every State and of elections to the offices of President and
Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as
the Election Commission)

14
purposes. Since independence the Election Commission of India has successfully conducted as
many as 15 General Lok Sabha elections and more than hundred State Legislatures elections.
But the path all through has not been very smooth. From time to time the election of India has
faced varied problems, like electoral malpractices, booth capturing, rigging, criminalisation of
politics etc.

There is no doubt that the Election Commission plays a very significant role in the smooth
running of the entire election process and also the fact that the duty is entrusted to them by the
Constitution itself which makes it all the more important to study the powers and functions of
the Election Commission of India. It will be very much desirable as well as advantageous to
analyze the problem of criminalisation of politics in relation to the powers and functions of the
Election Commission of India to examine how far the Election Commission of India has been
able to curb this socio-political menace.

The powers of the Commission under Article 324(1) of the Constitution are supplemented by
the Representation of People’s Act, 1950 and Representation People’s Act 1951, the President
and the Vice President Elections Act 1952 etc., and by the rules and orders made thereunder.

Under Articles 10322 and 19223 of the Constitution, the Election Commission has advisory
jurisdiction in the matter of post-election disqualifications of sitting members of Parliament
and State Legislatures. Further, the cases of persons found guilty of corrupt practice by a court
are referred to the Commission under section 8A24 of the Representation of the Peoples Act
1951 for its opinion on the question as to whether such person shall be disqualified and if so,

22
Decision on questions as to disqualifications of members -
(1) If any question arises as to whether a member of either House of Parliament has become subject to any of
the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of
the President and his decision shall be final
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election
Commission and shall act according to such opinion
23
Decision on questions as to disqualifications of members -
(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject
to any of the disqualifications mentioned in clause ( 1 ) of Article 191, the question shall be referred for the
decision of the Governor and his decision shall be final
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election
Commission and shall act according to such opinion
24
8A. Disqualification on ground of corrupt practices.—
(1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted,
as soon as may be after such order takes effect, by such authority as the Central Government may specify in
this behalf, to the President for determination of the question as to whether such person shall be disqualified
and if so, for what period: Provided that the period for which any person may be disqualified under this sub-
section shall in no case exceed six years from the date on which the order made in relation to him under
section 99 takes effect.

15
for what period. The opinions of the Commission under Article 103 or Article 192 of the
Constitution and section 8A of the Representation of People’s Act, 1951, are binding On the
President or as the case may be the Governor to whom such opinion is tendered.
In Indira Nehru Gandhi vs Shri Raj Narain & Another25 where Justice Khanna has expressly
held that the principles of free and fair elections is an essential postulate of democracy which
in its turn is a part of the basic structure of the Constitution. Similar view was expressed by the
Supreme Court in Pampakavi Rayappa Belagali vs B.D Jatti & Others26 Hon’ble Justice
Grover observed: free and fair elections are the very foundation of democratic institutions and
just it is said that the Justice must hot only be done, but also seem to be done. Similarly elections
should not only be so conducted as to inspire confidence in the minds of the electorate and has
been done to ensure free elections. From the above judgments given by the Supreme Court it
is quite clear that democracy contemplates free and fair election so as to enable the voters to
vote for candidate of their choice.

25
AIR 1975
26
1971 AIR 1348, 1971 SCR (2) 611

16
 LEGISLATIVE AND JUDICIAL RESPONSE TO CRIMINALIZATION OF
POLITICS
The Indian judiciary has always been in the epic of its stature. The role of Indian judiciary can
never be denied of, ever since the independence of India the judiciary has always stood the test
of time. The Judiciary being the guardian of the Constitution is entrusted with the responsibility
of safekeeping of the Constitutional ideals, and as such the Judiciary has on different times
showed great concern over the issues and problem concerning the rights of common men and
society including criminalisation of politics. Under the Indian legal system there are various
laws, which directly or indirectly deal with the entire political process of the country.

The Constitution of India also contains various provisions relating to the conduct of electoral
process in the country. India has a comprehensive structure of laws to administer and conduct
its elections. The formal legal framework for all these elections rests on certain provisions of
the Constitution, The Representation of the People’s Act 1951, and the various rules and
regulations framed and orders issued under these statutes largely control the electoral poll
process of the country. In addition, certain provisions of the Indian Penal Code and a few other
Acts are relied upon to provide for punishment as well as disqualification of candidates and
members of the two Houses of Parliament of India and State Legislatures.

The important articles of the Constitution of India27 relating to elections are -

(1) Articles 54-58, 62, 66-68 and 71, which prescribe the terms of office and manner of electing
the President and the Vice-President,

(2) Articles 80-83 lay down the composition and duration of the Rajya Sabha and the Lok
Sabha. (3) Article 84 prescribes the minimum qualification for a Member of Parliament in
terms of citizenship and age.

(4) Article 101 states that no person can be a member of both Houses of the Parliament or of
the Parliament and a State Legislature.

(5) Article 102 lays down disqualification for membership of Parliament of India.

(6) Articles 168-173 and 190-192 contain similar provisions for the Constitution, composition,
duration and qualifications and disqualifications for membership of State Legislatures.

(7) Article 324 provides for the establishment of the Election Commission and its functions.

27
The Constitution of India, 1950

17
(8) Article 326 provides that elections to the House of the People and to the Legislative
Assemblies of the States shall be on the basis of adult suffrage i.e. citizens of minimum 18
years of age.

(9) Article 329 lays down a bar to interference by Courts in electoral matters in as much as any
law relating to delimitation of constituencies or allotment of seats cannot be questioned in a
Court of law and no election to a House of the Legislature can be called in question except by
an election petition.

The Indian Penal Code, 1860 is used to categories certain actions in connection with elections
as punishable offences. There are two sets of disqualification envisaged:-

(i) The first is a disqualification for six years from the date of conviction for certain offences.

(ii) The voting age was reduced from 21 to 18 years by 61st constitutional amendment in 1988.

(iii) The second set of disqualification, when convicted for certain other listed offences is also
for a period of six years from the date of the release of the person from such conviction. In
addition, any person convicted of any offence and sentenced to imprisonment for not less than
two years also attract a six year disqualification from the date of release from such conviction.

Similarly, the relevant provision of the Representation of People’s Act, 1951 are:

1. Sections 3-6, which deals with qualification of candidates for Parliament as well as State
Legislative Assemblies and Legislative Councils.

2. Section 7-11 deals with disqualification of candidates on grounds of their being convicted
for certain offences under the Indian Penal Code or some other Acts of Parliament, electoral
offences like impersonation, bribery as well as on grounds of corrupt practices and for failure
to lodge account of election expenses'

3. Sections 19-25 provide details of the administrative machinery for conducting elections.

4. Section 29A deals with the registration of political parties of Representation of Peoples Act,
1951

5. Section 58A empowers the Election Commission for suspension of a poll or for
countermanding of elections.

18
6. Section 77 lays down that an account of all expenditure by the candidate and his election
agent is kept but explanation (1) excludes expenditure made by his political party or any others
from such account.

7. Section 79-122 lay down the procedure for dealing with electoral disputes and disposal of
election petitions.

8. Sections 123-136 specifies in detail corrupt practices and electoral offences and punishments
prescribed for the same.

The Supreme Court of India in Gadakhyashwantro Kankarrao v. Balasaheb Vikhe Patil28 has
also given various guidelines, which the person contesting the election has to follow. But in
spite of all these laws, rules, guidelines and various committee reports we cannot say that the
problem of criminalisation of politics has been solved to some extent.

The Supreme Court of India replying to a writ petition filed by The Association for Democratic
Reforms29 The Supreme Court of India replying to a writ petition filed by the Association for
Democratic Reforms took note of the increased criminalisation of politics in India, has held
that the voter has every right to know the social, economical and educational background of a
candidate in an election to Parliament or State Legislature. Further, the Supreme Court of India
directed the Election Commission of India to issue a notification to all the aspiring candidates
to make available information’s regarding education, assets, liabilities and criminal antecedents
for the benefit of the voter.

The Supreme Court of India has also affirmed this view in the case of Common Cause a
registered Society v Union of India30wherein the court explaining the power of the Election
Commission has said that The Commission has under Article 324(1) of the Constitution of
India to ask for details of expenses incurred by the candidate in an election in order to bring
more transparency, accountability and to avoid involvement of black money in elections.

In Jawahar Singh v. Election Commission of India & Others31 the Supreme Court of India dealt
with the issue of participation of criminals in elections and whereas a person can contest an
election who is released on bail in a criminal offence pending appeal section 8(3) of the

28
1994 AIR 678, 1994 SCC (1) 682
29
AIR (2002) SC 2112
30
AIR (1996) 2 SCC 752
31
AIR (1999) ALL 1821

19
Representation of People’s Act deals with disqualification of a candidate pending an appeal in
a criminal offence.

The judgement of the Supreme Court in Lily Thomas v. Union of India32 changed the above
mentioned position the Supreme Court of India in this case has held that if a sitting MP or MLA
is convicted (not only charged), he/ she would be immediately disqualified and the seat
declared vacant.

This judgement has also clarified another issue relating to disqualification by affirming that if
certain criteria stop a person from contesting in elections, then the same criteria also hold for
sitting MPs and MLAs hence they cannot continued to be a member of the Parliament or State
Legislature. The Court has also said that the Parliament does not have powers to make different
laws for the disqualification of a person based on whether he is a contesting candidate or a
sitting member of the Parliament and State Assemblies as it is against the provisions of the
Constitution. The above mentioned judgment has raised a lot of debates among the politicians,
administrators, statesmen and the common people alike.

32
AIR (678) SC 1994

20
JAYALALITHA’S CASE IN VIEW OF THE REPRESENTATION OF PEOPLE ACT,
1951

The incongruities in Section 8 of the Representation of Peoples Act, 1951 (RPA) came into
focus in “the Jayalalithaa disqualification case”. The Supreme Court’s Constitution Bench
ruled that she was ineligible to hold the office of Chief Minister of Tamil Nadu following her
conviction and disqualification under Section 8(3) &. Section 8(1) of the RPA.33

According to section 8(3) of the Representation of the People Act 1951, a person convicted of
any offence and sentenced to two years imprisonment or two years or more shall be disqualified
from electoral contests for a period of six (6) years from the date of conviction. Jayalalitha was
convicted and sentenced to two years and three years’ imprisonment relating to different cases
by trial Court. But the sentences were later on stayed by the Madras High Court.

Jayalalitha filed her nominations from four constituencies - Krishnagiri, Andipatti, Bhuvanagiri
and Pudukottai. The Returning Officers rejected her nominations on two grounds. The first
ground was that she has been convicted and sentenced to two years’ and three years’ of
imprisonment in two cases of corruption against her, and so Section 8 (3) of the Representation
of the People’s Act disqualifies her from contesting.

The 1997 order states that disqualification under RPA for conviction for offences mentioned
in the Act “takes effect from the date of conviction by the trial Court, irrespective of whether
the convicted person is released on bail or not during the pendency of appeal” 34 her papers
were rejected also on the ground that Section 33 (7) (b) of the RPA bars candidates form filing
nominations from more than two constituencies.

The controversy was finally subsided when Chief Election Commissioner Dr. M.S. Gill on
April 30 concurred with the decisions taken by the Returning Officers both in Tamil Nadu and
Kerala. He said that the Election Commission’s order dated August 28, 1997 had legal backing
and the Returning Officers had correctly interpreted.

33
Refer to Sec 8(3) & 8(1) of the Representation of People Act, 1951
34
Refer to sec 8(3) of the Representation of People Act, 1951

21
 CONCLUSION

In dealing with the criminalization of politics in India, it is seen that a large number of cases
have come to light to indicate that the unholy nexus between politicians and gangsters is the
most formidable problem for the future of Indian politics.

The analysis on legislative and judicial responses to the criminalization of politics in India, it
is found that their responses are not affective as expected to curb criminalization from Indian
politics. Due to the various loopholes in the existing laws, it provides a lot of scope to the
intending candidates with criminal background to contest elections and may be due to this
factor some of the legislators have criminal background.

The Judicial system in India too proved to be inadequate to resolve the issue of criminalization
from Indian politics. Cases involving election disputes on corrupt practices needs to be heard
on a day to day basis to ensure a quick verdict, but in this regard the response of the Judiciary
is also questionable. Through Judicial activism the Judiciary has taken a very leading role in
ensuring an equilibrium society, where everyone enjoys equal rights and opportunities, but
when it comes to wedding out criminals out of the political system, one fails to realize, why
the Judiciary has not taken an activist role.

To curb criminalization of politics the first necessary condition is the need of strong political
will of the political parties. The political parties and the politicians should not recruit any people
who have charges of criminal activities.

To curb criminalization from Indian politics there is need of making the political parties more
accountable to the public. This can be possible by framing a set of affective rules and
regulations.

To prevent criminalization of politics the pending cases before the Courts of law should be
disposed quickly so that a person with criminal charges cannot contest in the election. For
speedy disposal of such cases the system of fast track court may be introduced.

The general people have an important role to prevent criminalization of politics. People
themselves can prevent criminals in entering into politics by rejecting the candidature of the
criminals.

Inclusion of a Provision in Representation of Peoples Act 1951 for making it compulsory that
all aspiring candidates to be at least graduate in a respective stream.

22
 BIBLIOGRAPHY

BOOKS
1. M.P Jain, ‘INDIAN CONSTITUTIONAL LAW’, 7th ed. 2014, Lexis Nexis , New Delhi

2. P.D.T Achary, ‘LAW OF ELECTIONS’, 1st ed. 2004, Bharat Law House, New Delhi

3. Justice V.R Krishna Iyer, ‘LAW & LIFE’, Reprint ed. 2015 Universal Law Publishing, New
Delhi

ARTICLES
1. Achary, P.D.T., “Ailing Parliament Disruption of proceedings not part of MPs’ duty” , The
Tribune, (December 7,2011)

2. Aiyar, Swaminathan S. Anklesaria, “How to get criminals out of politics” , available at

http://articles.timesofindia.indiatimes.com/2002-03-10/india/27129343_1_ criminals-politics-
contest-elections

3. Dhiman, F.S., “Entry of Criminals into Politics” , available at

http://www.lawyersclubindia.com/articles/Entry-of-criminals-into-politics4402. asp#.POO
VTWA9GY

4. Israni, Varun, “Election Commission of India” , available at http.V/legalservices

india.com/article/print.php?art_id=246

23