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Mainstream, VOL LI, No 34, August 10, 2013

Keeping Out Dons

Monday 12 August 2013


by Arun Srivastava

With political parties unwilling to clean their stables, the Supreme Court has stepped in to rid the much-maligned system, make life tough for the criminals in politics by ruling that those convicted in a criminal case will stand disqualified as a lawmaker from the date of conviction.

Since 2002 the Apex Court has been expressing its concern and keen desire to end the menace of criminalisation of politics. But nothing substantial could be achieved so far. The political institution in India knows it well as to how to complicate the situation and wriggle out of it. The former Chief Election Commissioner, J.M. Lyngdoh, won the Magasaysay Award for his commitment to hold free and fair elecions, but had to suffer at the hands of the political set-up for his move to decriminalise politics. The Election Commission had come out with a mechanism to stop the entry of these elements in politics but unfortunately that did not find favour with the NDA Government.

It would be wrong to say that Indian politics has been yearning for such a game-changing move for quite some time. In fact even the larger section of the electorate is not too keen of electoral reforms and putting a ban on the entry of the criminals into politics. Had it not been the case there was no reason why the political institution in the country did not take a signifi-cant step in this direction. Even a person like former Prime Minister Atal Behari Vajpayee was not too agile to the need of cleansing the elections of criminals. The NDA Government had even turned down the request of the President, Dr A.P.J. Abdul Kalam, for cleaning up politics.

With the growing realisation that political power brings in prosperity and makes one immune to the law of the land, the urge for having access to the power-centre has become more acute. Entry of criminals into politics is primarily due to this realisation.

Unfortunately the Supreme Court has not been too serious about the matter. Besides some occasional outbursts it does not pursue its own observations with seriousness. On May 2, 2002 the Apex Court had ordered that persons willing to contest the elections would have to divulge their antecedents and furnish details of their income to the Election Commission. The Supreme Court at that time itself should have evoled some sort of legal mechanism to debar them from entering politics. The Vohra Committee appointed by the government had stated in strong terms that the nexus between the crime syndicate and political personalities was very deep. In its report to the Vohra Committee the CBI revealed: ”All over India crime syndicates have become a law unto themselves. The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country.”

The political establishment of the country would again use its skill and might to thwart the move of the Supreme Court and the best course left open for them is to file a review petition urging the Apex Court to reconsider its order. They will even raise the issue of the fundamental right of the individual (the criminal) to contest the elections.

The Supreme Court has also held that all politicians with criminal backgrounds who often contest from jail to bag political posts will now be denied that benefit. In a landmark judgement the Supreme Court held that once an elected representative is held guilty by any court of law, he will be immediately disqualified and cannot also appeal for three months. The Supreme Court further held that political under- trial prisoners cannot also contest elections from jail and, if convicted by courts, they will be banned from contesting any election.

Significantly, the Apex Court made its intention clear by striking down section 8(4) of the Representation of People’s Act. “Parliament does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a Member and for a person to be disqualified for continuing as a Member of Parliament or the State Legislature,” said the Apex Court Bench of Justices A.K. Patnaik and S.J. Mukhopadhyaya.

According to studies, nearly 31 per cent of Indian lawmakers have criminal cases pending against them. Out of 4835 Members of Parliament, State Legislative Assemblies and State Legislative Councils, 1448 are accused in criminal cases. These include 162 out of 543 Members of the Lok Sabha. The lawmakers are accused of crimes like rape, murder, attempt to murder, kidnapping, robbery, extortion, etc.

Nevertheless, the Supreme Court has to have a holistic look at the entire issue. We are aware of the functioning of the police. It frames even an honest and innocent guy in collusion with the vested interest. The Apex Court has to see that such frivolous cases and charges do not debar a genuinely honest person from contesting the elections. Besides, one presumes that the Court should also be aware of the manipulation by the criminal politicians; how they manage the case diaries and evidences. Out of lakhs of cases filed against these people, convictions are pronounced hardly in one per cent of cases. In ninetynine per cent of cases convictions usually do not take place. There are a number of examples before us where a criminal pronounced guilty by one court got exonerated by another.

The author, a senior journalist based in Kolkata, can be contacted at

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