Clarify legal status of parties and ministerial liability.

PARTIES, SERIOUS CRIMES AND THE NEED FOR JUDICIAL CLARITY

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Context: Recent Supreme Court observations on political parties and serious crimes highlight the need for judicial clarity on the role and accountability of parties and ministers in criminal cases.

Political Parties and Criminal Accountability

Prevention of Money Laundering Act (PMLA): This law targets financial crimes, particularly money laundering. It includes Section 70, which deals with offences by companies. According to this section, if a company violates the law, those in charge of it can be held accountable.
Political Parties v/s Companies: The Enforcement Directorate recently tried to include the Aam Aadmi Party (AAP) as an accused under PMLA.
- - However, there is a legal distinction; the term "company" in Section 70 refers to entities like corporations or firms, not political parties.
  - Political parties are defined differently under The Representation of the People Act (RPA) of 1951, which emphasizes their role in democratic processes rather than transactional activities.

Enforcement Directorate (ED)

●The ED started as an "Enforcement Unit" within the Department of Economic Affairs in 1956, focusing on violations of foreign exchange laws.

●Initially led by a Legal Service Officer, the unit was renamed the Enforcement Directorate in 1957 and has since expanded its role significantly.

●The laws it enforces; the Foreign Exchange Regulation Act of 1947 (FERA), the Foreign Exchange Management Act, 1999 (FEMA), the Prevention of Money Laundering Act, 2002 (PMLA) and the Fugitive Economic Offenders Act, 2018 (FEOA).

●The ED operates under the Department of Revenue, Ministry of Finance, with its headquarters in New Delhi.

Role and Function of Political Parties

Political parties, unlike companies, are not primarily involved in business transactions. Their main functions are to mobilize voters, contest elections, and govern.
The law treats Political parties differently because their activities are inherently tied to political and democratic processes, not business operations.

Legal Implications

Including political parties as accused under PMLA could set a problematic precedent, potentially exposing all political parties to legal scrutiny for the actions of their members. This approach might lead to excessive litigation and political misuse, complicating the legal landscape for party operations.

Accountability of Individual Ministers for Cabinet Decisions

Cabinet Decision-Making

India follows a parliamentary system where the cabinet makes collective decisions. The cabinet, led by the Prime Minister or Chief Ministers, has the authority to set policies.
The system relies on collective responsibility, meaning the cabinet as a whole is accountable for its decisions, not individual ministers.

Judicial Observations

Policy v/s Criminality: The Supreme Court highlighted the need to differentiate between policy decisions and criminal actions. They questioned how to draw the line between a policy decision made by the cabinet and individual criminal responsibility.
Legal Precedents: Historically, courts have avoided intervening in cabinet decisions, focusing instead on individual actions that violate the law. Holding individual ministers criminally accountable for collective cabinet decisions could disrupt the functioning of the cabinet system.

Practical Implications

Governance Stability: If ministers could be individually charged for cabinet decisions, it could paralyze governance, as every collective policy decision could be scrutinized for criminal implications. This would erode the principle of collective cabinet responsibility and could hinder effective governance.

Need for Judicial Clarity

●Holding political parties accountable under criminal laws designed for companies can have significant consequences, especially in a politically charged environment where vendettas are common. This could potentially target all parties and affect democratic processes.

●The judiciary needs to clarify the legal framework surrounding the accountability of political parties and individual ministers to prevent misuse and ensure fairness in legal proceedings.

Criminalisation of Politics

Criminalisation of politics occurs when individuals with criminal records or those involved in criminal activities are elected to political positions or take part in the political process. This trend erodes the principles of democracy and poses a threat to fair and just governance.

Association for Democratic Reforms (ADR) Report 2023

●ADR was established in 1999 by Professor Trilochan Sastry and colleagues at IIM-Ahmedabad.

●Objective: To promote transparency in elections and reduce corruption by ensuring candidates disclose criminal records, financial assets, and educational qualifications.

●It highlighted that an estimated 44% of MLAs in State Assemblies across India have declared criminal cases against themselves.

The data was extracted from the self-sworn affidavits of current MLAs in state assemblies and union territories nationwide.

●Uttar Pradesh, Maharashtra, Bihar, Andhra Pradesh, Telangana, and Himachal Pradesh have more than 50% of their MPs facing criminal charges.

●About 28% of MLAs have declared serious criminal cases against themselves, including charges related to murder, attempt to murder, kidnapping, and crimes against women, among others.

●A total of 114 MLAs have declared cases pertaining to crimes against women, with 14 of them specifically declaring cases related to rape (IPC Section-376).

Why Does It Matter?

Erosion of Democratic Values: Democracy works on transparency, accountability, and integrity. When individuals with criminal backgrounds enter politics, these values are compromised. Instead of serving the public, their primary focus becomes protecting their own interests.
Impact on Governance: Politicians with criminal records often engage in unethical practices, which can lead to poor governance. They might use their position to evade justice or manipulate the system for personal gain, undermining public trust in democratic institutions.
Public Perception and Participation: The presence of criminals in politics can disillusion the electorate. When people see that candidates with criminal records are winning elections, it may lead to a feeling of helplessness and a decrease in electoral participation. This weakens the democratic process.

Root Causes: Why Does This Happen?

Weak Legal and Regulatory Framework

India’s legal system has provisions to prevent individuals with criminal backgrounds from contesting elections. However, these provisions often fall short due to weak enforcement and legal loopholes.
The Representation of the People Act, 1951 (RPA) and the Election Commission of India (ECI) regulations mandate that candidates disclose their criminal records. Despite these rules, enforcement is inconsistent.
The ECI has reported that although candidates are required to declare criminal charges, many do not comply fully, and legal action against non-compliance is rarely taken.

Influence of Money in Politics

Political campaigns are expensive, and criminal elements often use their resources to fund campaigns. This financial backing helps them gain political influence and evade legal repercussions.
The cost of running for office has increased significantly, leading candidates to seek financial support from dubious sources. This dynamic creates a dependency on money, which criminal elements can exploit.

Political Connections and Patronage

Criminal elements often have connections with influential politicians and political parties. These connections provide them with protection and leverage to influence political processes.
Political patronage allows criminals to evade legal scrutiny. For example, connections with powerful politicians can shield criminal candidates from legal consequences and help them win elections.
Supreme Court in various rulings, including Lily Thomas vs. Union of India (2013), acknowledged that political patronage plays a role in the development of criminal elements in politics.

Electoral Violence and Intimidation

In many regions, criminal elements use violence and pressure to influence election outcomes. This violence deters honest candidates and voters, skewing the democratic process.
Election Commission of India reports document instances of violence (eg. Violence in West Bengal during the 2024 Lok Sabha election), often involving individuals with criminal backgrounds.

Voter Apathy and Disillusionment

The presence of criminal elements in politics can lead to voter apathy and disillusionment. When voters see that criminals can win elections, they may lose faith in the system and become less likely to participate.
Many surveys highlighted a decline in voter turnout in areas where criminal elements are prominent. Their research indicates that voter apathy is linked to a lack of trust in the political system.

Inadequate Internal Democracy in Political Parties

Political parties often lack internal democracy and mechanisms for candidate selection. This lack of internal checks allows individuals with criminal backgrounds to be nominated and elected.

Current framework to address the criminalisation of politics and limitations

The Indian Constitution sets the foundation for the electoral process and the qualifications of candidates. While the Constitution guarantees the right to vote and contest elections, it also provides for certain disqualifications. These disqualifications can be based on various grounds, including criminal convictions.

Key Constitutional Provisions

Articles 84 and 173: These articles outline the eligibility criteria for candidates wishing to contest elections. To be eligible for the House of the People (Lok Sabha) or the Council of States (Rajya Sabha), candidates must meet certain age and citizenship requirements.
- - Article 84: States that a person must be a citizen of India and must not be disqualified by any law made by Parliament to be eligible for election to the Lok Sabha (House of the People).
  - Article 173: Sets similar eligibility criteria for candidates seeking election to the State Legislative Assemblies.
Articles 102 and 191: These articles deal with disqualifications for membership in the Parliament and state legislative assemblies. They specify conditions under which a person can be disqualified from holding office, such as being convicted of certain criminal offences.
- - A person convicted of a serious offence, such as murder, may be disqualified from running for office under these constitutional provisions.
  - Article 102: Specifies the grounds for disqualification of MPs, including holding an office of profit under the government or being convicted of certain offences.
  - Article 191: Lays down the criteria for disqualification of State Legislative Assembly members, similar to Article 102 for MPs

Representation of the People Act (RPA), 1951

Section 8: This section specifies the offences that can lead to disqualification from holding office. Convictions for certain crimes, such as corruption or violence, result in automatic disqualification from contesting elections or continuing as a Member of Parliament or Legislative Assembly.
Affidavit Requirement: Candidates are required to submit an affidavit, known as Form 26, which discloses their criminal records, assets, and liabilities. This requirement aims to increase transparency and allow voters to make informed decisions.

Indian Penal Code (IPC) - Chapter IX A

The Indian Penal Code includes Chapter IX A, which addresses electoral offences. This chapter defines various crimes related to elections and prescribes penalties:

Bribery: Offering money or gifts to influence voters is considered a serious offence. The law imposes penalties on those who engage in or accept bribery during elections.
Improper Influence: This includes any form of coercion or manipulation to sway voters' decisions. It’s prohibited and punishable under the IPC.
Impersonation: Casting a vote on behalf of someone else or pretending to be a different voter is illegal. The IPC sets out penalties for such fraudulent actions.

Conduct of Election Rules, 1961

These rules are framed under the RPA and mandate the submission of Form 26 by candidates. The form includes detailed information about the candidate’s background, including any criminal charges or convictions.
Section 125A: This section makes it an offence to fail to provide accurate information in Form 26 or to knowingly provide false information. Penalties for non-compliance help ensure that candidates are honest about their backgrounds,
- - If a candidate hides their criminal record or provides false details in Form 26, they can be prosecuted under Section 125A.

Legal Challenges

Definition of "Conviction": The interpretation of what constitutes a "conviction" for the purposes of disqualification has been debated. This has led to varying legal outcomes in different cases.
Time Limits: There have been discussions about the appropriate time limits for disqualification based on criminal convictions. Should the disqualification be permanent, or should there be a specified period after which a convicted person can re-enter politics?
Nature of Offenses: The nature of the offences that should lead to disqualification has been a subject of debate. Some argue that only serious offences should be grounds for disqualification, while others believe that any criminal conviction should be sufficient.

The Road Ahead

●Clearer Definitions: Defining terms like "conviction" and "serious offence" more precisely to avoid ambiguity.

●Timely Enforcement: Ensuring that disqualification proceedings are conducted promptly and efficiently.

●Public Awareness: Raising awareness among voters about the importance of electing candidates with clean records.

●Political Party Reforms: Encouraging political parties to adopt stricter internal mechanisms for selecting candidates and promoting a culture of ethical conduct.

Impact of Criminalisation on Indian Politics

The growing trend of criminalisation in Indian politics has raised serious concerns about the integrity of our democracy and the quality of governance.
The presence of politicians with criminal records has far-reaching implications, affecting everything from public trust to the effectiveness of law enforcement.
Erosion of Public Trust: When voters see politicians with criminal backgrounds being elected to office, it erodes their faith in the democratic process. This can lead to apathy, disillusionment, and a decline in voter participation.
Corruption and Inefficiency: Politicians with criminal records are more likely to engage in corrupt practices. Their connections with criminal networks can provide them with opportunities for illicit enrichment and influence. This can lead to inefficient governance, delays in decision-making, and a decline in public services.
Threats to Law and Order: The presence of criminal elements in politics can degrade law and order situations. Politicians with criminal backgrounds may use their influence to interfere with investigations, protect their associates, and create a culture of impunity.
- - This can erode the rule of law and make it difficult for law enforcement agencies to function effectively.
Negative Impact on Society: The criminalisation of politics can have a negative impact on society as a whole. It can send a message to young people that criminal behaviour is acceptable or even rewarded. This can lead to a decline in moral values, a rise in crime rates, and a breakdown of social cohesion.
Challenges to Development: Criminalisation can hinder development efforts by creating an environment of uncertainty and instability. Investors may be hesitant to invest in a country where the political system is plagued by corruption and crime. This can limit economic growth and job creation.
Political Instability: The presence of politicians with criminal backgrounds can contribute to political instability. It can lead to conflicts within political parties, divisions within the government, and a breakdown of the democratic process.

Important Supreme Court Judgement

Over the years, various judicial rulings and legal reforms have aimed to address and mitigate the influence of criminal elements in the political domain.

Union of India v/s Association for Democratic Reforms (2002)

The Supreme Court ruled that voters had a fundamental right to know the criminal background of candidates contesting elections. This right was linked to the freedom of speech and expression, emphasizing transparency in elections.
The Court directed the Election Commission of India (ECI) to ensure that candidates disclose detailed information about any criminal charges or past convictions, including the nature of the crimes and the outcomes of any court cases.

If a candidate had been previously convicted of a crime, they were required to disclose the conviction details, including the type of offence and the sentence received. This transparency aimed to empower voters with critical information to make informed choices.

People Union for Civil Liberties (PUCL) v/s Union of India (2004)

Section 33B of the Representation of the People Act (Third Amendment) was declared unconstitutional as it obstructed the right of voters to be informed, thus compromising the fairness of elections.
The Court stated that all criminal records of candidates should be made public, reinforcing the principle that transparency is crucial for free and fair elections.

Prabhakaran v/s P. Jayarajan (2005)

The Supreme Court highlighted that the purpose of disqualifying individuals with criminal backgrounds from contesting elections was to prevent the entry of criminal elements into politics. The Court stressed that such provisions were essential to maintain the integrity and fairness of the electoral process.
This case highlighted that allowing individuals with criminal backgrounds to hold public office erodes democratic principles and the rule of law.

The Supreme Court emphasized the importance of disqualifying individuals with criminal backgrounds from contesting elections to prevent political influence and maintain the integrity and fairness of the electoral process, arguing that allowing such individuals to hold public office undermines democratic principles.

Lily Thomas v Union of India (2013)

The Supreme Court ruled that Members of Parliament and Legislative Assemblies convicted of serious crimes (with sentences of two years or more) would face immediate disqualification from their positions.
This ruling eliminated the previous provision allowing convicted members a three-month period to appeal their conviction.
The judgment aimed to ensure that elected representatives who engage in serious criminal activities cannot continue to hold office.

Public Interest Foundation v Union of India (2018)

The Supreme Court ruled that candidates accused of serious crimes could not be disqualified merely based on the framing of charges.
The Court clarified that it could not introduce new disqualification rules and urged Parliament to enact legislation to address this issue.
The ruling highlighted the need for legislative action to prevent candidates with serious criminal charges from entering politics, stressing that judicial intervention alone might not suffice.

Recommendations to Address the Criminalisation of Politics in India

The criminalisation of politics in India requires urgent attention. To address this problem, a multifaceted approach is needed that involves strengthening laws, improving enforcement mechanisms, promoting societal awareness, and reforming electoral processes.

Strengthening Laws and Regulations

Amend the Representation of People Act, 1951: The Representation of People Act, 1951, should be amended to include stricter grounds for disqualification and to expedite the process of disqualifying politicians with criminal records.
- - Second Administrative Reforms Commission (2nd ARC) Recommendations: The 2nd ARC suggested an amendment to Section 8 of the RPA. This recommendation aims to disqualify candidates who face serious charges related to grave crimes or corruption if the charges have been framed at least six months before the election.
Increase Penalties: The penalties for electoral offences and criminal convictions should be increased to deter individuals with criminal backgrounds from entering politics.
Establish Special Courts: Special courts can be established to handle cases related to electoral offences and the disqualification of politicians. This will help to expedite the judicial process and ensure that justice is delivered promptly.

Improving Enforcement Mechanisms

Strengthen Law Enforcement Agencies: Law enforcement agencies should be equipped with the necessary resources and training to investigate and prosecute cases involving politicians with criminal records.
Independent Electoral Commission: An independent and powerful Electoral Commission should be established to oversee the electoral process and ensure that elections are free, fair, and transparent.
Public Interest Litigation: Public interest litigation can be used to challenge the election of politicians with criminal records and to hold them accountable for their actions.
Implementing a Time-Bound Justice Delivery System: Speedy justice is essential to ensure that individuals with criminal backgrounds do not enter the political system.

Promoting Societal Awareness

Voter Education: Voters should be educated about the importance of electing candidates with clean records. Public awareness campaigns can be launched to highlight the dangers of criminalisation and the negative consequences for society.
Holding Political Parties Accountable: Political parties should be held accountable for their choices and be required to follow the rule of law. When parties face pressure to select candidates without criminal backgrounds, it can lead to a more transparent and ethical political process.
Media Awareness: The media should play a crucial role in exposing the criminal records of politicians and holding them accountable. Journalists should investigate and report on allegations of corruption and other wrongdoing.
Civil Society Engagement: Civil society organizations can play a vital role in raising awareness about the issue of criminalisation and advocating for reforms.

Reforming Electoral Processes

Campaign Finance Reforms: Stricter regulations should be introduced to regulate campaign finance and prevent the use of black money in elections.
E-Voting: Implementing e-voting can help to reduce the incidence of electoral fraud and ensure that elections are free and fair.
Political Party Reforms: Political parties should adopt stricter internal mechanisms for selecting candidates and ensure that only those with clean records are allowed to contest elections.
Promoting Internal Democracy in Political Parties: Allowing party members to participate in the selection process can lead to more accountable and transparent candidate choices. When party members have a say, there is a higher chance that candidates of integrity will be chosen, reducing the likelihood of criminal elements entering politics.

Implementing Committee Recommendations

Several committees have proposed reforms to address criminalization:

Dinesh Goswami Committee (1990): Develop a model code of conduct to govern the use of official machinery, transport, media, and funds during elections. A clear code of conduct helps maintain fairness by setting boundaries for campaign practices and resource use.
Venkatachaliah Committee (2002): It recommended that individuals convicted of serious offences, such as those involving moral corruption, should be disqualified from contesting elections.
Law Commission Report (2014): It recommended disqualification at the stage of framing charges, along with stricter penalties for filing false affidavits. This was aimed at addressing the problem of criminal elements entering politics.
Law Commission of India (2018): Recommended that individuals convicted of serious crimes should face lifetime disqualification from holding public office. Urged for the establishment of fast-track courts to handle cases involving criminal charges against politicians to expedite justice and reduce delays.

Conclusion

●The Supreme Court’s observations on the inclusion of political parties in serious criminal cases and the differentiation between policy decisions and criminality highlight the need for clear legal guidelines. The clarity will ensure that political activities and policy decisions are not inappropriately charged with criminal behaviour, thus maintaining the integrity of the democratic process.

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PRACTICE QUESTION

Q. Evaluate the legal and practical difficulties in categorizing political parties as corporate bodies under the Prevention of Money Laundering Act (PMLA). How does this categorization conflict with the traditional functions and roles of political parties within a parliamentary democracy?