Author: Shefali Chitkara,
Vivekananda Institute of Professional Studies
"From the much-needed core reforms in our electoral system, decriminalization of politics requires the foremost attention and central position."
The Representation of the People Act, 1951 was enacted by the parliament to provide for the conduct of elections of the houses of parliament or legislatures of each state, also the qualifications and disqualifications for membership of those houses. It was held in the case of Election Commission of India v. Telangana Rashtra Samithithat the act is a complete code of conduct of elections under Article 324 that talks about the superintendence, direction, control and conduct of elections. A comprehensive system of elections is there in our country and we always believed in free and fair elections. But still, our electoral process is beset with many evils such as casteism, use of black money, criminalization of politics, etc. This article deals with the need for the decriminalisation of politics and issues involved in the criminalization of politics by analyzing various judgements and also suggests the way forward.
All the evils as mentioned above have led to the eroding of faith of people in the free and fair elections. To restore the faith, there is an urgent need for electoral reforms. Some of the reforms include the reduction of voting age, a person convicted for the offences under Prevention of Insults to National Honour Act, 1971 is disqualified to contest in elections for 6 years. Now, candidates are required to present their criminal antecedents, educational qualifications, assets on their nomination papers. Apart from this, there is still a lot to achieve. The most important one is the decriminalization of politics. There was a report which said that 76 out of 543 members of Lok Sabha in 2009 had been charged with serious criminal charges like murder, rape. Criminalization of politics hits at the root of public engagement with the system, it reduces their trust, and forces them into apathy.
CRIMINALIZATION OF POLITICS AND ITS CONSEQUENCES
The main reason for criminalization is the nexus between the criminals and some of the politicians. Under this, the criminals contest elections and even get elected to the parliament and state legislatures. On one hand, the criminals need the patronage of politicians to continue their criminal activities and in return, the politicians need the money and muscle power to win elections. The second reason is the delay involved in the criminal justice system. According to the golden rule of criminal law that the accused is presumed to be innocent until proven guilty, once the accused files an appeal to the high court after the trial court convicted him, his conviction and sentence are suspended by the high court and he becomes innocent once more in the eyes of law and is also not prohibited from contesting elections. This system has very adverse consequences for the nation.
Some of these are:
· Lawbreakers would become lawmakers.
· The parliament and council of ministers lose their credibility and legitimacy.
· Increased circulation of unaccounted money or black money.
· Culture of violence in the society and youth would be in the danger.
ANALYSIS OF PROVISIONS AND CASE LAWS RELATED TO DISQUALIFICATION ON BEING CONVICTED FOR AN OFFENCE
Article 102 provides for disqualification for the membership of parliament and Article 191 deals with the disqualification from the state legislature. Chapter III of the second part of Representation of People Act, 1951 also deals with the disqualifications for membership of parliament and state legislatures. The sections also provide for disqualification of sitting members of parliament or state legislatures if he is convicted for any offence and sentenced to imprisonment for not less than two years would be disqualified and remain disqualified for a period of six years since his release.
There was a case of Dinesh Trivedi v. Union of India, in which the supreme court discussed the extent of criminalization of politics. It is the danger to the sacredness of democracy and is adversely affecting the free and fair elections in the country. In the case of Ram Udgar Singh v. State of Bihar, it was held that earlier it was considered to be the choice of noble and decent people but now it is becoming a heaven for law-breakers.
Then, with the case of Union of India v. Association for Democratic reforms, it was made mandatory for the contesting candidates to submit an affidavit in Form 26 which would include details regarding pending criminal cases, properties, sources of income and educational qualifications. This was considered to be an important step towards the decriminalization of politics.
One of the important judgements delivered in the case of Lily Thomas v. Union of India, has contributed greatly towards decriminalizing of the political system. This case was fought to ensure that members who have been convicted of criminal offence don't remain members of the legislature. The politician, Lalu Prasad Yadav was the first one who lost his membership after being convicted in the fodder scam in 2013. It was held that the convicted members would be disqualified even if his appeal is pending adjudication. The sole respite is that if the conviction is stayed up by the appellate court under Section 389(1) of CrPC or if it is stayed by High Court under Section 482 of CrPC, then the candidate can contest.
Without waiting more, it is an urgent need of the hour for the supreme court to immediately order that candidates convicted for heinous crimes would be permanently disqualified, the candidates against whom charges have been framed under Section 8(1), (2), (3) of the Representatives of People Act, 1951 would be disqualified and it must also bring political parties under the ambit of Right to Information Act. Law Commission's 244th report must be implemented to take one more step towards decriminalization of politics.
 (2011) 1 SCC 370.  Electoral Reforms towards decriminalizing politics, available at https://www.legalservicesindia.com.  Ibid.  The Saga of decriminalization of electoral politics in India and way forward, available at https://www.indialegallive.com.  (1997) 4 SCC 306.  (2004) 10 SCC 443.  (2002) 5 SCC 294.  (2013) 7 SCC 653.  The Saga of decriminalization of electoral politics in India and way forward, available at https://www.indialegallive.com.