Context: The Central government has told the Supreme Court that it rejected the idea of barring convicted legislators for life from contesting elections, forming or becoming an office-bearer of a political party.
What is the issue?
- The case is based on a plea that a life ban on conviction should uniformly apply for members of the judiciary, executive and the legislature. There should not be any discrimination of one from the other.
- The Election Commission endorsed a life ban as necessary to “champion the cause of decriminalisation of politics”.
- Disqualification under the Representation of the People Act of 1951 for the period of the prison sentence and six years thereafter was enough for legislators.
- The govt. said that legislators are not bound by specific “service conditions”.
- They are bound by their oath to serve citizens and country.
- They are bound by propriety, good conscience and interest of the nation.
- The Representation of the People Act, 1951 specifies the qualifications and the disqualifications of Members of Parliament and state legislatures.
Section 8A in The Representation of the People Act, 1951: Disqualification on ground of corrupt practices.
- The period for which any person may be disqualified under this subsection shall in no case exceed six years from the date on which the order made in relation to a person found guilty of corrupt practices.
- Any person who stands disqualified under section 8A of this Act, may submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period, if the period of such disqualification has not expired.
- Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.
Criminalization refers to the use of criminal activities by politicians; either by direct malfeasance or by indirectly recruiting someone.
- Nearly half of the newly-elected Lok Sabha members have criminal records, a 26 per cent increase as compared to 2014, according to the Association of Democratic Reforms.
Consequences of criminalisation of politics:
- Nexus between crime and money power: The most critical drivers are the collapse of election finance regime and the weak enforcement of the rule of law in the country that have created the “marketplace for criminal politicians”.
- The primary sacrifice is that of governance, along with transparency and accountability.
- Corruption: Expensive election campaigning favours candidates with strong financial background. Such candidates, when elected, seek to recover their expenses besides securing a corpus for the future elections as quickly as possible, especially in the era of coalition governments with tenuous stability.
Judicial interventions for electoral reforms
Public Interest Foundation vs. UOI case 2018
- Issue: The Court had to decide if persons ought to be disqualified from membership in legislative bodies when criminal charges are framed against them.
- Currently Section 8 of the Representation of Peoples Act only disqualifies them when they are convicted of criminal charges and sentenced to imprisonment for not less than two years for a period of six years since their date of conviction.
- Respect for the separation of powers: The SC recognized that it cannot introduce new rules regarding the disqualification of electoral candidates.
- The Bench asked Parliament to make a law that prevents candidates accused of serious crimes from entering politics.
- Free & fair elections and the fundamental right to know: The Court cited Association for Democratic Reforms, PUCL and Resurgence India to establish that the fundamental "right to know" flows from the fundamental right to free expression under Article 19(1)(a) of the Constitution.
The Court also issued the following directions:
- Candidates must fill up forms containing all particulars.
- In said forms, criminal antecedents to be stated in bold.
- Candidates must inform the concerned political party of pending criminal cases against them
- Concerned political parties put up such criminal antecedents of candidates on party website.
- Wide publicity by both candidates and parties in press and media of the criminal antecedents. Wide publication meaning at least thrice after filing of nominations
- Disclosure of Candidate Background (Criminal, Educational & Financial) to Election Commission.
- Association for Democratic Reforms v. Union of India (ADR) case, 2002: The SC mandated the disclosure of information relating to criminal antecedents, educational qualification, and personal assets of a candidate contesting elections.
The Parliament then essentially nullified part of that ruling by amending the Representation of the People Act so as to require political candidates to disclose certain criminal records; namely, any charges or convictions for any offence punishable with imprisonment for two years or more.
- In its People’s Union of Civil Liberties (PUCL) judgement, 2003 the SC said that even though the right to vote itself may not be a fundamental right, the expression of opinion through the final act of casting a vote is part of the fundamental right of freedom of speech and expression under Article 19(1)(a).
- It rejected the constitutional validity of the amendment to Section 33B of the Representation of the People Act, 1951.
- Availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on the merits and demerits of candidates.
- Right to privacy not absolute: With respect to the relationship between the right to access asset declarations of the candidates and the right to privacy, the Court emphasized that the right to privacy is not absolute and “a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation.
- Manoj Narula v. Union of India case: The five-judge Constitution Bench decided on a public interest litigation petition filed in 2005 seeking the removal of tainted Ministers from the Cabinet.
- A five-judge Constitution Bench said the Prime Minister as the trustee of the Constitution was expected to act in accordance with constitutional propriety and not appoint unwarranted persons as Ministers.
- Court cannot add new disqualification for Ministers: The Court refused to add a new disqualification in the Constitution for appointment as Ministers, saying it was the prerogative of the Prime Minister or the Chief Minister of a State to appoint Ministers of his/her choice (Article 75(1) or, for that matter, Article 164(1)
The case involved interpreting Articles 75 and 164 of the constitution, which deal with the advice tendered to the president and governor by the prime minister and chief minister.
The president is bound to act on the advice of the prime minister, so it is incumbent upon him to assent to the prime minister's choice of cabinet ministers.
- Lok Prahari v. Union of India, 2018: The court extended the disclosure obligation to further include information relating to sources of income of candidates and their “associates”, and government contracts where candidates or their associates have direct or indirect interests.
- The Supreme Court's Judgement On NOTA, 2013: The Supreme Court had ruled that None of the Above (NOTA) option “may be provided in EVMs” so that voters are able to exercise their “right not to vote while maintaining their right of secrecy”.
- Disqualification Of Convicted MPs/MLAs
- In Lily Thomas vs. Union of India, 2013, the Supreme Court stated that if a sitting MP/MLA is convicted (not only charged) then he/ she would be disqualified immediately and the seat would be declared vacant.
- It set aside Clause 8(4) of the Representation of the People Act which had provided special privilege to MPs/MLAs to hold the office even after conviction if an appeal has been filed in a higher court within the span of 3 months.
- Chief Election Commissioner vs. Jan Chowkidar, 2013: The SC barred those in jail from contesting. It directed the EC to bring the issue of election related freebies under the ambit of the Code of Conduct.
- The ruling was followed by a quick reaction by the legislature. Representation of the People (Amendment and Validation Act) 2013 was passed thereby totally nullifying the Supreme Court’s ruling.
- In 2014, the Supreme Court recently ordered setting a deadline for the lower courts to complete trial in cases involving lawmakers within a year of framing of charges.
- The Supreme Court in its order on 14 December, 2017 asked for the setting up of special courts to fast-track the long-pending trials of elected members.
Is the information about party funding relevant for a voter in choosing a candidate?
In Kihoto Hollohan v. Zachillhu And Others, the Supreme Court, while upholding the anti-defection amendment, noted: “A person who gets elected as a candidate set up by a political party is elected on the basis of the programme of that political party.” Parties cannot conceal information about the funding of the candidate.
- Unequivocal opposition from all the political parties: When the Supreme Court in its recent intervention (Lily Thomas vs. Union of India, 2013) sought to prevent convicted MPs from continuing in office, the legislators promptly geared up to nullify the judgment through an ordinance.
- Party funding: the Representation of the People Act, 1951: Section 29C(1)(a) exempts political parties from disclosing the source of any contribution below ₹20,000.
- This gives political parties a convenient loophole to hide their funding sources by breaking contributions into smaller sums, even ₹19,999 each.
- Political parties under RTI: Central Information Commission (CIC) had declared six national political parties to be “public authorities” under Section 2(h) of the RTI Act, but none of the parties complied with the order.
- The RTI Act does not provide the Commission with ample powers to deal with the cases of contempt and non-compliance.
- Section 44 of the Lokpal Act, 2013, which requires all public servants (this includes judges) to disclose their assets but is silent on whether the disclosure should be to the competent authority or the general public.
- First-past-the-post system: If a situation arose where the number of NOTA votes exceeded the number of votes polled by any of the candidates, the candidate with the highest number of votes would be declared winner. This provision made the NOTA option almost redundant.
- Judicial pendency: According to ADR report, 30% of sitting MPs and MLAs were facing some form of criminal proceedings, and only 0.5% were convicted of criminal charges in a court of law.
- The harsher law will only result in undue political pressure on the judiciary to delay, derail or compromise the judicial process.
- Slow setting up of fast track courts: the Union Government stated that so far 10 Special Courts have been set up and 1233 cases have been transferred to them. Almost 89% of the cases are still pending. Even in the cases that have been dealt with, the conviction rate is as low as 6%.
- Electoral bonds: Finance Act, 2017 which was enacted as a money bill which introduced the electoral bond scheme for the purpose of electoral funding. The Act has also removed the previous limit of 7.5% of the company’s average three-year net profit for political donations.
- A company is no longer required to name the political parties to which such contributions are made. The donors’ name is also not revealed to the public.
- These amendments will result in opaqueness, heighten the odds of conflict of interest and also drastically increase black money and corruption.
- It will also lead to the creation of shell companies and rise of benami transactions to channelize the undocumented money into the political and electoral process in India.
- Judicial limits: Any judicial attempt to broaden the criteria for membership of Parliament beyond the constitutional provisions laid out from Article 102(1)(a) to 102(1)(d) would be a breach of separation of powers.
- This is something for Parliament to consider as an amendment to the Representation of the People Act, 1951.
- Misuse of obsolete laws: These range from Section 124A of the Indian Penal Code (IPC) criminalizing sedition to Sections 499 and 500 recognizing criminal defamation. The Indian state—no matter the party in power—has used and abused these laws with abandon.
- Winnability of criminals: Data from the last three general elections shows that the strategy was an electoral success as candidates with criminal cases were three times more likely to win than a “clean" candidate.
- Misgovernance: state institutions lack the capacity to deliver public goods and services. Currently, a large part of the voting population views their representatives as their problem solvers. So they are willing to vote for a candidate who can get things done ignoring his involvement in a crime.
- Increasing election expenses: the costs of contesting elections kept increasing due to a rising population. Thus parties fielded tainted candidates because they could contest an election without becoming a burden on the party’s limited coffers.
- Prosecuted politicians can field their relatives in the contest, thereby retaining power within the family.
- Indian Elections-a mammoth exercise: Considering that there were one million polling stations and 900 million voters and 12 million polling staff, this is the biggest management event of any kind in the world.
- Incentives for both politicians and voters: bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.
- Thus, either the Election Commission of India (ECI) should have the power to audit the financial accounts of political parties, or political parties’ finances should be brought under the right to information (RTI) law.
- Broader governance reforms for voters to reduce the reliance on criminal politicians. That requires a rationalization of bureaucratic procedures and an increase in state capacity to deliver essential public goods like security of life and contracts, and access to public utilities.
- There should be a ceiling on election expenditure by political parties also and appointment of election commissioners should be through a collegium.
- A debate on the first-past-the-post election system, in which the candidate who receives the most votes wins, in the country. Even in the UK limitations of the first-past-the-post system are being noticed and there is an increasing demand for proportional representation.
- Setting up of a national electoral fund or state funding of elections where anybody could donate and from there political parties should be funded based on their performance.
- Electoral bonds can stay only when the who-donated-what-to-whom should be disclosed.
- The law commission 244th report on electoral disqualification was of the opinion that, “disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics.
- It also suggested that in the case charges framed against sitting MPs/MLAs the trial should be conducted on a day-to-day basis and completed within a year.
- Sensitising the electorate : Viewing their MP and MLA as lawmakers will slowly change their perception of what they want from their representative.
- Political parties will have to be encouraged to have stronger inner party democracy to attract new set of clean leaders to join the party.
- Our judicial system will have to be overhauled drastically to ensure that justice is dispensed swiftly in all cases.
Global best practices:
- The UK moved from the old Corruption of the state in the 18th century to cleaner administration in the 19th “not as a result of a change in people, but mainly because the rules which were implemented created a specific pay-off system."
- A mix of first-past-the-post system and proportional representation to political parties worked very well in Nepal and Sri Lanka.
- The German election model -- where Germans cast two votes (one for a candidate in their constituency and one for a political party) is the best