Criminalization of Politics
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Table of Content:
- Introduction
- Statutory provisions and rules
- Critical Analysis of RamBabu Singh Thakur vs Sunil Arora
- Background of the case
- Issued Involved
- The contentions of parties
- Judgment Passed
- Conclusion
- Case Laws:
- Public Interest Foundation & ors. Vs Union of India [(2019) 3 SCC 224]
- RamBabu Singh Thakur vs Sunil Arora [(2020) 3 SCC 733]
Introduction
The expression ‘criminalization of politics’ means and depicts the intention of a person who has a criminal background who has been convicted earlier for any offense, to enter in the world of politics and to participate in the election and getting elected. This is so because there is an inter dependency between the criminals and politicians as the politicians need the strength and power of the criminals to won the election whereas, on the other hand, the criminals need the finance and support of politicians to get rid of the punishment in respect of the crime they committed. And there are situations where the criminals chose to join politics and contest the elections so that they have the power to protect themselves from the law and order. The election of such a person will amount to the degradation of the democracy of India.
Also the apex court in the case of Public Interest Foundation & ors. Vs Union of India [(2019) 3 SCC 224] held that the political parties have to provide the information and the background of their candidates on their website and if any of their candidates have criminal background then in such a case a detailed report related to why the candidate was convicted, what is the nature of such criminal act, etc.
Statutory Provisions and Rules
The Hon’ble Supreme Court considered the following points while determining the matter:
Doctrines
- The doctrine of Colorable legislation: this doctrine implies that what is directly prohibited by the statute is also prohibited and restricted in every other manner. In other words, we can say that what we are not supposed to do directly we are not permitted to do that indirectly also.
Principles
- Presumptions of Innocence: in the eye of law it is a basic assumption that a person is always an innocent person until and unless his or her guilt is proved.
- Separation of Powers: it is a part of the basic structure of the constitution. But this concept is not strictly followed in India. Separation of powers means that no wing of the democracy will interfere in the working of the other departments. But in the Indian context legislature, executive and judiciary are inter dependent on each other.
Articles of the constitution of India
- Article 129: this article conferred the power in the Supreme Court that the Supreme Court is considered as the court of record and can punish a person for its contempt.
- Article 142: this article provided that the judgment of the Supreme Court is binding on all the courts throughout India.
Critical Analysis of RamBabu Singh Thakur vs Sunil Arora [(2020) 3 SCC 733]
Background of the case
The petition filed in the instant case is a contempt petition in regard to the criminalization of politics. This contempt petition outlines the important issue related to the involvement of criminals in politics and the petitioner brings the point in front of the court regarding its contempt as the directions issued by the apex court in the case of Public Interest Foundation & ors. Vs Union of India [(2019) 3 SCC 224]. This case is known as the electoral disqualification case.
In Public Interest Foundation & ors. Vs Union of India [(2019) 3 SCC 224], a petition was filed by the BJP leader Ashwini Upadhyay along with the Public Interest Foundation. Public interest Foundation is an NGO working for protecting the interest of the public. In the said petition the petitioner contended that in the interest of the public and for the benefit of the public it is important that those candidates against whom any criminal proceedings were initiated in any court of law shall be deprived of contesting the elections. The petitioners argued that if the law breakers become the law makers then it will lead to being a great misery for the nation. As the one doesn’t respect the law cannot have the power to make the one. For the sake of justice and to protect the public interest at large the apex court issues the direction for the criminalization of politics and also to make politics a healthy space to work.
Issues raised
- Whether the court has the power to enact new laws in relation to qualified and disqualified membership of parliament which ultimately exceeds the provision of Article 102 (a) to Article 102 (e)?
The contention of parties
Arguments of the petitioner:
- The petitioner contended that the right to contest the election is merely a statutory right not covered under the Part III of the constitution of India, 1950.
- Though the right to contest the election is not fundamental right but it is governed by the constitutional provisions so that no contestant or politician shall be prejudiced and also proper and good governance shall be maintained.
- The law breakers will be prevented to become the law maker as it will be proven to be great misery.
- The petitioner further argued that the apex court must give a direction to the election commissioner to disqualify the candidates who have a criminal background and also the election commission strictly ordered all the political parties not to allow any candidate to contest the election who have a criminal background.
Arguments of the respondent:
- The respondent argued that the principle of Separation of Power must be followed in the country.
- According to the principle of separation of power, the law making power is conferred under the legislature, that is, in the Parliament and the court has a duty to know the law must be followed properly and to punish those who break the law. And, therefore the power of the court is limited to issue the guidelines and directions only.
- Further, it was contended that the provision provided under Article 142 is exhaustive in nature and hence no further words can be add in such a definition.
Judgment passed
The Hon’ble Supreme Court by taking all the doctrines, principles into consideration held that the court is unable to issue a writ of mandamus to the election commissioner regarding the disqualification of the candidates who have a criminal background. Further, the court added that the power of making law is conferred in the legislature and it cannot be extended to the judiciary.
But on the other hand Article 129 and Article 142 of the constitution of India guarantees the power to the court to issue the guidelines and directions.
The Supreme Court issue the following directions to be followed by the political parties:
- Each and every candidate need to fill the form provided by the election commission who wants to contest the election.
- If there is any criminal proceeding initiated against the candidate then the candidate needs to mention that in the bold letters.
- If a candidate is contesting election via a particular political party, then the candidate needs to tell about his or her past criminal records to such party.
- In such cases, the political party has to mention the criminal record of their candidate on their official website.
- After filing the nomination form the candidate or the political party publishes such antecedents of the candidate in the widely circulated newspaper in that area and via electronic media.
- Further, if any criminal proceedings are pending against the selected candidate then the party needs to disclose the same such as what is the nature of the offense, whether the charges have been framed or not, etc.
- The party must provide the reason for the selection of such candidate on the basis of his or her qualifications, achievements, and merits of the candidate.
- The political party must submit a report regarding the follow up and fulfillment of the above requirements to the election commissioner within 72 hours of the selection of such a candidate.
- And if the political party fails to submit such a report to the election commissioner then, the election commissioner shall inform the Supreme Court regarding the same by way of the contempt of the Supreme Court orders or directions.
Conclusion
Politics have a very important role in our society as it governs the entire nation and a particular state and therefore the one who gets the power to make and implement the law will be chosen very wisely. For the development and betterment of the country, the judiciary needs to play its active role in amending and adding any law which is enacted by the legislature, and such a power was conferred in the Supreme Court as an exception to the principle of Separation of Powers.