Democracy has not been a free gift for most of the present democratic nations including India. India earned its independence and democracy after a long freedom struggle. The most significant feature of a democracy is the election process. Free and fair elections are essential in a healthy democracy. For the success of democracy, it is necessary that people maintain their allegiance towards the democratic institutions based on rule of law. The more the elections are free and fair, the stronger the allegiance the people will have towards democratic institutions. Contrary to this, if the elections are not free and fair, the people will not have faith in democracy. Parliament has made laws to ensure free and fair elections and a very comprehensive system of elections has been developed in the country. The experiences of the last fifteen General Elections have shown the merits and demerits of the system to the people. Minor changes have regularly been made in the election system. However, still our electoral process is beset with many evils like use of black money, casteism, communalism, rigging, abuse of administrative machinery, criminalization of politics, and even capturing of booths in some areas. All these abuses lead to eroding of faith of the people in free and fair elections.
In order to restore the faith of people in democracy, there is an urgent need of electoral reforms. Various reforms have been introduced in our electoral system in the past. Parliament through 62nd Constitutional amendment in 1989 reduced the minimum voting age from 21 to 18. The Representation of the Peoples Act (RPA), 1951, was amended to facilitate use of Electronic Voting Machines (EVMs). A person who is convicted for the offences under the Prevention of Insults to National Honour Act 1971 is disqualified to contest in the elections to the Parliament and state legislature for 6 years. There is prohibition on entering into the neighbourhood of a polling station with any kind of arms. Under a 2003 provision, the Election Commission should allocate equitable sharing of time on the cable television network and other electronic media during elections to display or propagate any matter or to address public. Candidates are now required to furnish their criminal antecedents, assets, educational qualifications, etc. on their nomination papers.
Recently Supreme Court has come out with certain judgments to cleanse the political system off the criminals. Section 8(1), 8(2), and 8(3) of the RPA, 1951 provide grounds of disqualification for any person who is convicted and given varying range of imprisonment, for a period of 6 years from the date of his release from prison. Section 8(4) states that if a sitting member of Parliament or state legislature is convicted and sentenced to not less than 2 years of imprisonment shall be disqualified from being member of house. However, if the member goes on appeal against his conviction within 3 months, then he shall not be subject to disqualification. The Supreme Court in Lily Thomas vs. Union of India 2013 held Section 8(4) as unconstitutional and void. Hence, now if a sitting member of Parliament or state legislature is convicted and sentenced to not less than 2 years of imprisonment, he will get immediately disqualified from being member of house. This is a crucial judgment and will go a long way in cleaning our political system.
In another recent judgment, Supreme Court held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected. The voter could press the None of the Above (NOTA) button in the electronic voting machine (EVM). . The above mentioned as well as other numerous electoral reforms have been introduced by Election Commission from time to time but still there is lot to be achieved. The ship of democracy in India is adrift in choppy waters. Grave risks lurk all around. Unless it is steered with great care and in the appropriate direction, it just might hit a rock of an iceberg and disintegrate thus sink. Nothing is impossible However, no electoral system can function properly unless the underlying political system in which it operates is appropriate, just as a healthy plant cannot grow and bear good fruit unless the soil is properly prepared & the fruit in this case being governance. Therefore, the political will is must to introduce the much required core electoral reforms in a sustainable manner.
Among the much needed core reforms in the electoral system, decriminalization of politics deserves a central position. Criminalization of politics in India is today a sad reality. According to the Association for Democratic Reforms (ADR), 76 of the 543 members elected to the Lok Sabha in 2009 had been charged with serious criminal charges such as murder, rape and dacoity. Under the present setup, getting elected to the legislature becomes a convenient shield to delay and extend the legal processes and escape being convicted.
Criminalization of Politics
It implies that the criminals entering the election fray and contesting elections and even getting elected to the Parliament and state legislature. It takes place primarily because of the nexus between the criminals and some of the politicians. The criminals need the patronage of politicians occupying public offices to continue with their criminal activities and the politicians need the money and muscle power that the criminals can offer to the politicians to win elections. In course of time, the nexus led the criminals themselves to contest elections. Further, the criminal justice system has inbuilt delays. It takes on an average 15 years for a criminal case to be finally disposed off by the courts. Under the golden rule of criminal law on which the entire criminal justice system is based, the accused is presumed to be innocent till he is proved to be guilty. Therefore, after the accused is convicted and sentenced by trial court, by going on appeal to higher court, his conviction and sentence are suspended by higher court till it disposes off the appeal. Thus, the convicted person becomes
Innocent once more in eyes of law and is not prohibited from contesting elections. Moreover, the rate of conviction in the country has been going down which means more and more criminals may go unpunished as their guilt is not proved beyond reasonable doubt in court of law. Thus, the known criminals are not legally prohibited from contesting elections. The elections to Lok Sabha and state legislatures are based on the First Past the Post (FPTP) electoral system. FPTP electoral system allows a candidate to be declared elected from the constituency on the basis of plurality of votes polled and not on the majority of votes polled. Thus, in a multi-cornered contest, a candidate with as low as 25-30% of valid votes polled may get elected which criminals does not find difficult to get because of the use of their money and muscle power. The Parliament also so far has failed to enact adequate electoral reforms to decriminalize politics. The political parties are also guilty of not following value-based politics which combined with declining value system in society has also contributed to criminalization of politics. The Criminalization of politics has very adverse consequences on the society as well as on nation.
Consequences
The major impact is that the law-breakers get elected as law-makers. According to Election Commission, about 40% of members elected to 15th Lok Sabha are facing criminal charges in court of law. This makes the Parliament less efficient in enacting necessary laws for the effective administration of country. The Parliament loses its credibility and the Council of Ministers loses its legitimacy to administer the country. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for an accused elected representative. It also leads to increased circulation of unaccounted money or black money during and after elections, diluting the probity in public life. The increased levels of corruption in public life weaken the state institutions including the bureaucracy, the executive, the legislature and the judiciary. Further, it introduces a culture of violence in the society and sets a bad precedence for the youth to follow.
Conclusion
It is very important that democracy forms the basic structure of the society. Effort must be made to make society democratic. Democracy should be the value system of Indian citizens. The responsibility of survival of democracy can’t be shifted on the state institutions alone. The citizens have an equal part to play in the healthy functioning of the democracy. Hence, there is no doubt that electoral reforms are the need of the hour in order to attain sustainable democratic India. The objective of electoral reforms is the distillation of General Will. There must be no place for the criminals in the sacred electoral process of obtaining General Will. Electoral system should be able to attract the best talent in the country. Elections should not be seen as mere rituals but the pathways of democracy. Honesty shouldn’t be a disincentive but instead a reward in the electoral system. For a true decriminalization of politics, the instant need is to abolish the patronage to Criminals which is often given by politicians and political parties. A strong political will is required on the part of government to decriminalize the entire political system by taking stringent measures as well as by enactment of required legislation. Supreme Court has also held that free and fair elections are a part of the basic structure of the Constitution. There is an urgent need to break the criminal-political nexus. Unless some decisive action is taken soon, the public will lose all faith in politics, politicians and democracy itself. This will do irreparable damage to our republic.
–Mohd Hanzallah
(The author is a final year law student at Aligarh Muslim University, Aligarh. The views expressed are his own. he may be contacted at: mdhanzallah0777@gmail.com)
