“Out of 4835 Members of Parliament and Members of the Legislative Assembly analysed, 1448 members or 31% have declared criminal cases against them in a self sworn affidavit filed with the Election Commission of India.” This alarming statistic is taken from a report conducted in 2012 by the Association for Democratic Reforms in India (full report available here).
This number must be contemplated in the context of criminal justice in India – where there is an environment of fear in reporting crime because victims are likely to face additional persecution in their pursuit of justice. This is even more pronounced if the target of an allegation is a public figure like a Member of Parliament (MP) or a Member of the Legislative Assembly (MLA) because of the power they enjoy in those positions, power which can be easily misused. It is a great irony and tragedy if the very makers of the law are the breakers of the same. Why are there so tainted politicians being elected into office and what are the consequences are necessary questions.
In response to increasing scepticism about the credibility and legitimacy of politicians in office, arising from their pending criminal charges, the Law Commission of India has proposed stricter laws governing the eligibility of electoral candidates. As it stands, there are provisions in the Representation of the People Act 1951 against persons who have been convicted of certain offences, which disqualify them for membership of Parliament and State Legislatures. The Law Commission has put forward the idea of including charge-sheeted persons in that provision. This is its justification:
“While some constructive steps have been taken through significant amendments to the Representation of the People Act, 1951, these reforms have failed to keep up a consistent pace with the growth and strengthening of the democratic values… Therefore, a review of the laws and procedures in light of new developments and complexities is necessary.” (As reported in The Hindu)
How does the Law Commission’s proposal to extend the provision to charge-sheeted persons measure up against these democratic values that it speaks of? It is important to understand what such a proposal really means, with due consideration of the current situation and the significance of passing this amendment to the current Act.
The reality of the political situation in India today is this: corruption is the order of the day. The most effective and efficient method to reach or to maintain a position of power is through corrupt means. Police, the bureaucracy, and politicians are deeply intertwined in the criminal network of India, which stretches across states and reaches deep into local levels. Imperfections in existing institutions and other infrastructural mechanisms that enable the day-to-day running of the country are retained, because cleaning up the system would also wipe out the very officials in charge of that job.
The consequence of that reality is ineffective and inefficient institutions of public administration, one of which is the criminal justice system. Instead of having an independent and thorough investigative mechanism to uphold justice for victims of crime, bureaucratic inefficiencies are artificially created by delaying the criminal justice procedures with bribes etc. Months or years added to this process allows politicians accused of even serious crimes (such as murder, rape and kidnapping) to run for office and possibly sit through their term with charges against them pending indefinitely.
It seems like the easiest and the most logical solution to control the alarming statistic is to impose greater restrictions on electoral candidates, so the number of tainted politicians admitted into public office can be mitigated. This is precisely what will defeat the democratic values in India, instead of protecting and promoting those ideals. Amending the Representation of the People Act, 1951 to disqualify charge-sheeted persons from contesting elections contradicts the basic principle of presumption of innocence in a free and fair criminal justice system. Imposing the same restrictions on charge-sheeted persons as convicted criminals is the equivalent of presumption of guilt, which violates the fundamental right to “be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”, as laid out in the Universal Declaration of Human Rights.
The argument in this article does not create greater safety nets for criminal politicians; rather, it maintains the fundamentals of democratic governance. Following through with the move proposed by the Law Commission does not only change the political landscape, it changes the fundamentals of the legislative system, the same system which protects ordinary citizens. This is also not throwing in the towel on democracy; since the statistic is a manifestation of a flawed policing system, it is thus imperative to improve the institutional set-up to tackle India’s problem effectively. This involves reforming the law enforcement agencies, ensuring that principles of accountability and transparency are upheld in an independent law enforcement mechanism.
The very people sitting in public office and voting on this amendment are the same people whom it affects. Not only was this move lacking in strategic foresight, it is also lacking in clarity about what is needed to protect the democratic values that India prides itself on. Instead of sabotaging itself by playing the dual role of law-makers and breakers, it is high time politicians in India realise the democratic ideals that truly make India.
About the author: Ms. Vivian Ng is a student at the Singapore Management University, and currently interning at the AHRC. The author can be contacted at vivian.ng@ahrc.asia.
