CHAPTER-IV

CRIMINALIZATION OF POLITICS

The Preamble of the Constitution of India begins with the phrase “WE THE

PEOPLE OF INDIA”, underlining the spirit of democracy in India. Therefore,

democracy in the form of representation of people is what exists in India. The

members of the legislature are mandated to represent vicariously the aspirations and

concerns of the people whom they represent.

India has witnessed a crisis of empathy, quality, fairness, integrity, honesty,

and intellectual capability among the members of its legislatures, both at the Centre as

well as the State level. The very spirit and objective of democracy could be lost if

India continues to suffer at the hands of such law-makers who are a liability to the

society. Corruption has been rampant in Indian polity, not only at the electoral level,

but also at the Executive level. In addition to this, India stands witness to an

alarmingly high number of people with criminal background who have polluted Indian

polity.

India stands as a model for many emerging democracies around the world. Free

and fair elections are the hallmark of a well functioning democracy. While we are

justifiably proud of our democracy, there are a number of areas which need to be

strengthened for us to realize the true potential of a well functioning democracy, Our

election system, from the selection of candidates, to the manner in which funds are

raised and spent in election campaigns, are in dire need of significant changes.

1
 There has been a growing concern over the years in India about several aspects

of our electoral system. The Election Commission has made changes in several areas

to respond to some of the concerns. There have also been a number of committees

which have examined the major issues pertaining to our electoral system and made a

number of recommendations. But there remain some critical issues that might need

legislative action to bring the required changes.

The criminalization of our political system has been observed almost

unanimously by all recent committees on politics and electoral reform. Criminalisation

of politics is of forms, but the most alarming among them is the significant number of

elected representatives with criminal charges pending against them.

The financing of elections has become a major issue in the past few decades. It

is widely believed that the cost of fighting elections has climbed far above the legal

spending limits. This has resulted in lack of transparency, widespread corruption, and

the pervasiveness of so-called ‘back-money’.

The conduct of elections also has a number of issues that need to be addressed.

While the massive size of the electorate makes holding elections a daunting task, it

should not serve as a justification for the presence of issues such as booth capturing,

intimidation of voters, tampered electoral rolls, large-scale rigging of election and

other polling irregularities; the proliferation of non-serious candidates, and the abuse

of religion and caste in the mobilization of voters.

It is well known fact that all most all political parties take the help of criminal

elements to dominate the election scene in India. But this process is influencing the

mind and the will of the people both to gain the majority to rule the country according
to their will. The system of democracy is now changing into the dictatorship of some,

because the democracy of India are now in hands of the criminals who are not capable

any way to hold the post of legislature.

The Santanam Committee Report 19631

The Santhanam Committee, 1963 was a Parliamentary Committee which was

requested to give a report on the methods of eradicating corruption. The Committee

went into the matter extensively and suggested that there should be Vigilance

Commission both at the Centre and in the States. It referred to political corruption as

more dangerous than corruption of officials.

“that there is wide spread public, impression that some Ministers who held

office for several years have enriched themselves illegitimately, obtained good jobs for

their sons and relations through nepotism and have obtained other benefits inconsistent

with any notion of purity in public life.”

The Committee counseled priority to prevention of political corruption over

prevention of administrative corruption. It opined that the top had to be made clean to

expect cleanliness at the lower levels. It emphasized that elected representatives,

ministers and legislators have to first creat a climate of integrity as an example for

others to follow.

Vohra Committee Report

Twelve bomb blasts that shook Bombay on 13 March 1993, had involved the

collaboration of a diffuse network of criminal gangs, police and customs officials as

1
179th Report of Law Commission of India on Public Interest disclosure and protection of Informers
dated 14th December 2001.
well as their political patrons. A commission was instituted to investigate the so-called

nexus.

The Vohra (Committee) Report was submitted by the former Indian Union

Home Secretary, N.N. Vohra, in October 1993. It studied the problem of the

criminalization of politics and of the nexus among criminals, politicians and

bureaucrats in India.

The report contained several observations made by official agencies on the

criminal network which was virtually running a parallel government. It also discussed

criminal gangs who enjoyed the patronage of politicians, of all parties, and the

protection of government functionaries. It revealed that political leaders had become

the lenders of gangs. They were connected to the military. Over the years criminals

had been elected to local bodies. State Assemblies and Parliament.

The Report says “In the bigger cities, the main source of income relates to real

estate – forcibly occupying lands/buildings, procuring such properties at cheap rates by

forcing out the existing occupants/tenants etc. Over time, the money power thus

acquired is used for building up contacts with bureaucrats and politicians and

expansion of activities with impunity. The money power is used to develop a network

of muscle-power which is also used by the politicians during elections.”

“The nexus between the criminal gangs, police, bureaucracy and politicians has

come out clearly in various parts of the country. The existing criminal justice system,

which was essentially designed to deal with the individual offences/crimes, is unable

to deal with the activities of the Mafia; the provisions of law in regard economic

offences are weak

 The report by N.N. Vohra found such deep involvement of politicians with

organized crime all over India that it was barred from publication. Here Vohra

observes “the various crime syndicate mafia organizations have developed significant

muscle and money power and established linkage with governmental functionaries,

political leaders and other to be able to operate with impunity. As highlighted by the

Vohra Committee, our elections involve a lot of black money and it is this use of black

money in elections which has also brought about the criminalization of politics. After

all, the story of the Hawala scam started by the police stambling to the Jain diaries in

their effort to trace the money received by the Kashmiri militats, The scam brought out

the linkage between the corrupt businessmen, politicians, bureaucracy and the

criminals. The 1993 Bombay blasts which took away the life of 300 people was made

possible because RDX could be smuggled by allegedly bribing a customs official with

20 lakhs. 22 years ago, Vohra committee submitted its report to curb criminalization of

politics but the fact is that no application in this way is being made. This was

mentioned in the petition submitted to the Speaker of Lok Sabha and President of India

on 16th May that – “The subject of criminalization of politics is one that concerns the

entire nation closely. It is deeply disturbing that on the one hand, our polity is tolerant

of `fake encounters’ (summary executions) of alleged criminals and terrorists, while

our highest representative body Indian Parliament – harbours people caught red-

handed in acts of human trafficking, and convicted on charges of abduction and

suspected murder.”
 In 1997 the Supreme Court recommended the appointment of a high level

committee to ensure in-depth investigation into the findings of the N. N. Vohra

Committee and to secure prosecution of those involved.

Padmanabhaiah Committee Report

The Padmanabhaiah Committee on Police Reforms (The Committee) was set

up by the Ministry of Home Affairs. Government of India in January 2000. In addition

to the Chairman, a former Union Home Secretary, the Committee consisted of four

members, who were all policemen-two retired and two serving. The report was

submitted by the Committee to the central government in October, 2000.

Regarding the Politicisation and Criminalisation of Police, the Committee pointed out

that politicization and criminalization of the police force has been growing. According

to the Committee, “Corruption is the root cause of both politicization and

criminalization of the police.”2 And criminalization of police cannot be de-linked from

criminalization of politics. It is the criminalization of politics, which has produced and

promoted a culture of impunity that allows the wrong type of policeman to get away

with his sins of commission and omission.

The Committee ascribes the growing political interference in the police

administration and its work to “recruitment and transfer policies/procedures, failure of

political leadership and the failure of police leadership.”3 The Committee is of the

view that most problems of police are due to arbitrary and frequent transfers of police

personnel of different ranks and once the powers in this regard are given to the

2
Report of Committee on Police Reforms, August 2000.
3
ibid.
departmental hierarchy, political interference in policing will be reduced. To reduce

political interference, the Committee has suggested4

that “(i) coordination with the

secretariat should be the function of the DG/Commissioner of Police” or their nominee

and (ii) any officer approaching a politician for transfers/postings, training, rewards

etc, should be severely dealt with.”

Political Control over the Police

The image of the police in this country has always been bad. With the passage

of time, it has only become worse. Citizens are highly dissatisfied with the quality of

policing. There are many reasons for the poor quality of policing, but a major reason

identified is the type of control that has been exercised over the police. Control over

the police is exercised by the state government. Unfortunately, the manner in which

the control is exercised has hled to gross abuses, almost all the State Police

Commission, the National Police commission and other expert bodies, which have

examined police problems, have found overwhelming evidence of misuse and abuse of

police system by politicians and bureaucrats for narrow selfish ends. The situation

resulting from wrong control over the police has become worse during the last few

decades because of increasing criminalistiaon of politics.

The fact that the rule of law is gradually being replaced by the rule of politics is

a cause of concern to all who are interested in establishing good governance in the

country. The Padmanabhaiah Committee too has shown this concern.

4
ibid.
Reasons for Criminalisation of Politics

Despite the best intentions of the drafters of the Constitution and the Members

of Parliament at the onset of the Indian Republic, the fear of a nexus between crime

and politics was widely expressed from the first general election itself in 1952. In fact,

as far back as in 1922, Mr. C. Rajagopalachari had anticipated the present state of

affairs twenty five years before Independence, when he wrote in his prison diary:

“Elections and their corruption, injustice and tyranny of wealth, and inefficiency of

administration, will make a hell of life as soon as freedom is given to us. . .”5

Interestingly, observers have noted that the nature of this nexus changed in the

1970s. Instead of politicians having suspected links to criminal networks, as was the

case earlier, it was persons with extensive criminal backgrounds who began entering

politics.6 This was confirmed in the Vohra Committee Report in 1993, and again in

2002 in the Report of the National Commission to Review the Working of the

Constitution (NCRWC). The Vohra Committee report pointed to the rapid growth of

criminal networks that had in turn developed an elaborate system of contact with

bureaucrats, politicians and media persons.7 A Consultation Paper published by the

NCRWC in 2002 went further to say that criminals were now seeking direct access to

power by becoming legislators and ministers themselves.8

5
Per C Rajagopalachari in Kishor Gandhi, India’s Date with Destiny: Ranbir Singh Chowdhary
Felicitation Volume, 1st Ed. (Allied Publishers, 2006) 133.
6
Milan Vaishnay, The Market for Criminality: Money, Muscles and Elections in India’(2010).
7
Government of India, `Vohra Committee Report on Criminalisation of Politics, Ministry of Home
Affairs’(1993).
8
National Commission to Review the Working of the Constitution. À Consultation Paper on Review of
the Working of Political Parties Specially in Relation to Elections and Reform Options’(2002).
Money – The Root of the Problem

The primary function of money is to serve as a medium of exchange, and as

such it is accepted without question in final discharge of debts or payment of goods or

services.9 The term ‘money’ generally includes banknotes as well as coins, although it

may be limited to such of each as are legal tender at the time and place in question. 10

The precise meaning of the term depends upon the content in which it is used so that,

for example, it is usually given a wide meaning when used in a will and when that

meaning gives effect to the intention of the testator, an intermediate meaning in

connection with claims for money paid or for money had and received, and a narrow

meaning in the criminal law and in relation to execution.11

Money has been regarded as bone of contention between friends and relatives.

It is said lend money to a person if you want to spoil him or make foe, money –

wealth, property or estate have always caused family, feuds and even murders for it is

said that all is fair in love and war. Money is devil’s child and is responsible for many

mischief and evils. Some people think that wealth can bring happiness in life but it is

not so.12

Money is the root cause of many evils like corruption, black marketing,

smuggling, drug trafficking, tax evasion, and the buck does into stop here it goes to the

extent of sex tourism and human trafficking.

9
Moss vs Hancock (1899) 2 QB 111.
10
The term is sometimes used to include not only actual cash but also a right to receive cash, as for
example, sins standing to the credit of a bank account or invested in securities, and the term may in
some cases be used in a popular sense to include all personal or even, exceptionally, all real and
personal property.
11
Halsbury Laws of England, 4th Ed. Vol. 32.
12
Frank Desantis, Love of Money is Root Cause of Evils

163
Corruption

“Just as it is impossible not to taste the honey or the poison that finds itself at

the tip of the tongue, so it is impossible for a government servant not to eat up, at least,

a bit of the king’s revenue. Just as fish moving under water cannot possibly be found

out either as drinking or not drinking water, so government servants employed in the

government work cannot be found out (while) taking money (for themselves).”

India inherited a legacy of corruption from its ancient rulers13 who always

expected some gifts (in the form of the nazarana) from their subjects, one of the

important aspects of the employers’ function in those days was to extract money from

the common folks to enrich the treasury of the rulers. Appointments to the key

positions were made on family considerations.

Most often, a “Prime minister’s son succeeded his father, a governor’s son the

governor, a judge’s son a judge, a village headman’s son the headman. Replacing

relatives in good positions, irrespective of merit, gained merit in the eyes of the

people.”14 Thus, nepotism as an evil was an acceptable concept in those days and the

vocabulary had no proper word for it.

Corruption in India is also a legacy of the colonial system. As colonial

governments were generally regarded as alien and hence illegitimate, consequently

cheating and deciving such an alien power was considered a fair game. The roots of

political corruption in developing states thus lie in the colonial order or native

tyrannical rule from which they have emerged as independent democratic states. In
13
For on account of corruption in ancient India during the Vedic period, see Upendra Thakur,
Corruption in Ancient India, New Delhi Abhinava Publications, 1970.
14
Khushwant Singh, “Are we a Corrupt People?”in Suresh Koldi (ed.) Corruption in India, New Delhi,
Chetana Publications, 1975.

164
colonial times, the government was carried on by the aliens, and the citizens developed

an attitude of irresponsibility and felt obliged to thwart the government in every

possible way, including cheating and other corrupt methods. The cheating of foreign

rulers in government came to be admired as a patriotic virtue.

Before Independence from colonial rule, corruption was nourished in a number

of developing countries by the colonial officials themselves, who encouraged it by

accepting expensive gifts, jewels, money, favours and undue hospitality from the

influential elite native groups to grant them undue favours either against other similar

groups or to individuals for their own private gains, examples abound in the Colonial

Administration in India during the 18th-20th century. Where the incumbent officials of

them like Robert Clive and Warren Hastings had to even face trials in their own

countries after their return for such misdemeanour. However, it was during World War

II that the spectre of corruption raised its head when there was sudden increase in

administration, opportunities for corruption due to large scale purchases and

procurement of defence material and constrictions, manipulation, and intrigues of

foreign financial and business powers.15 But when that colonial system was replaced

by an independent democratic system, the former attitude did not disappear at all, but

has percolated down to the post independence period with greater vengeance, and thus

today cheating government is not generally considered by many as any immoral act.

The value system of people inmodern times has now declined to such a low ebb as

makes any exceptionally honest official behaviour appear as a pleasant surprise.

15
Husein Altas, Corruption and Destiny of Asia, Kuala Lumper, Malaysia: Simon & Schuster (Asia)
Private Ltd., 1999.
 Consequently, in India, corruption has become a social phenomenon. It is

widespread and has increased at a fantastic pace. There is hardly any area of activity

that has remained wholly free from the impact of corruption, In fact, corruption has

now become institutionalized and a commonly accepted way of life, in India,

acceptance of bribes, commissions, under-the-table payments, and gifts, by the

politicians or the bureaucrats are not longer frowned upon, and even subtile ways have

been discovered to create a legitimate veneer and consider these as a part of normal

life activities. In short, such an ethos has been created in the society that corruption has

ceased to be regarded as a crime any longer.

Meaning of the word `Corruption’

There is no universal definition of what constitutes a corrupt behaviour. The

definition of corruption and corrupt practices varies from country to country. The

World Bank and other multilateral institutions refer to it as “the abuse of public office

for private gain.16 It involves the seeking or extracting of promise or receipt of a gift or

any other advantage by a public servant in consideration of the performance or

omission of an act, in violation of the duties required of the office. Mark Philip, a

political scientist, identified three broad definitions of corruption, viz., public office

centered, public interest centered and market centered.17

“Corruption is behaviour, which deviates from the formal duties of a public

role because of private regarding (personal, close family, private clique) pecuniary

status gains; or violates rules against the exercise of certain types of private regarding

influence. This includes such behavior as bribery (use of reward to pervert the
16
Published by Transparency International World Bank in Financial Times September 16, 1997.
17
Mark Philip, Defining Political Corruption political studies, Vol. 45 No. 3, special issue 1997.

166
judgment of a person of in a position of trust), nepotism (bestowal of patronage by

reason of ascriptive relationship rather than merit), and misappropriation (illegal

appropriation of public resource for private-regarding uses)”.18

To combat corruption, the World Bank has identified specific abuses of public

office for private gains, which are as follows:

“Public office is abused for private gain when an official accepts, solicits or

extorts a bride. It is also abused when private agents actively offer brides to

circumvent public policies and processes for competitive advantage and profit. Public

office can also be abused for personal benefit even if no bribery occurs, through

patronage and nepotism. The theft of state assets or the diversion of state revenues.”19

Syed Hussein Alats has, while defining the term corruption “as the abuse of

trust in the interest of private gain.” Identified transactive and extortive corruption, the

former being an agreement between a donor and recipient pursued by them for mutual

benefit and the latter entailing some form of coercion to avoid the infliction of harm on

the donor. He also identified other kinds of corruption, e.g., investive corruption

involving the offer of benefit without an immediate link but in anticipation of a future

gain in which favour may be required; nepotic corruption concerning favour to friends

and relatives in appointment to public office; autogenic corruption taking place when a

single individual earns profit from inside knowledge of a policy outcome; and

supportive corruption referring to the protection or strengthening of existing corruption

often through the use of intrigue or violence.20

18
J. S. Nye, Political Corruption a Cost Benefit analysis.
19
World Bank, Helping Countries Combat Corruption The Role Of World Bank, 1997.
20
Syed Hussein Alatas, Corruption; its Nature, Causes and Consequences, Aldershopt; Brookfield,
VI. USA Avebury, 1990.

167
 The definitions, enumerations and discussions of various types/forms of

corruption focus essentially on behavior of officials in the public sector who

unlawfully or improperly enrich themselves by the misuse of public power entrusted to

them.

Defining Corruption

Defining corruption is also important in the context of global efforts to reduce

its influence in public life. But that is not an easy task. Corruption is a social, legal,

economic and political concept enmeshed in ambiguity and consequently encouraging

controversy. The ambiguity and controversy result from the fact that a number of

competing approaches to understanding corruption is available. Naturally, definitions

of corruption focus on one of several aspects of the phenomenon. various approaches

to corruption can be placed intofive groups. these are public-interest-centered, market-

centered, public-office-centered, approach believe that corruption is in some way

injurious to or destructive of public interest. Market-centered enthusiasts suggest that

norms governing public office have shifted from a mandatory pricing model to a free-

market model, thereby considerably changing the nature of corruption. 21 Public-office-

centered protagonists stress the fact that misuse by incumbents of public office for

private gain is corruption.22 Those who believe in public-opinion-centered definitions

of corruption emphasize the perspectives of public opinion about the conduct of

politicians, government and probity of public servants.23 Others have suggested

21
Tilman, 1970 : 62-64.
22
www.msu.edu,theobald, (1990:2)
23
Simon Leys, (1970 : 31-37)
looking at corruption purely in terms of legal criteria in view of the problems inherent

in determining rules and norms which govern public interest, behavior and authority.24

The five approaches, as discussed above, have concentrated on the nature of

corruption. Though the approaches throw some light they do not clarify the meaning of

corruption to any satisfaction. Now there are four divergent views on the definition of

corruption. The definitions have come from moralists, functionalists, social censurists

and social constructionist realists.

The moralists view “corruption as an immoral and unethical phenomenon that

contains a set of moral aberrations from moral standards of society, causing loss of

respect for and confidence in duly constituted authority”25 One of the well-known

proponents of this view, Nye, portrays corruption as “a behavior that deviates from the

formal duties of a public role (elective or appointive) because of private-

regarding(personal, close family, private clique) wealth or status gains, or violates

rules against the exercise of certain type of private-regarding influence”. But this way

of defining corruption suffers from a number of limitations. It tends to individualize a

societal phenomenon and attempts to dichotomize as to what is good and what is bad.

In the process societal contexts are ignored and the gap between formal norms and the

underlying practice-girded norms are not analysed.

The functionalists usually look at corruption in terms of the actual function that

it plays in socio-economic development. Claims are made by functionalists that

corruption flourishes as a substitute for the market system: offers an acceptable

24
James C. Scott, Comparative Political Corruption, 1972, USA.
25
Stephen Jay Gould, Wonderful life Penguin London. 1991.
alternative to violence increases public participation in public policy. 26 Some

functionalists believe that political and bureaucratic leaders may see a national interest

inactively pursuing or tolerating a certain agree of administrative corruption27 The

major criticisms against functionalists are that they ignore the political significance of

deviance and lack any consideration of power, interest and social structure in their

analyses and at the same time the whole question of the origins of corruption is not

considered.28

The two comparatively recent perspectives, i.e., social censure and social

construction reality, view corruption radically differently from the other two

approaches, i.e. moralists and functionalists. Both the approaches tend to look at

corruption from a broad societal perspective. The proponents of social censure believe

that in understanding corruption one should take into consideration the capacity of the

state to produce a particular form of social relations and shift the theoretical emphasis

to the interplay of law, ideologies and political economy. On the other hand, social

construction reality views corruption as problematic and the actors involved can be

studied by relating them to contextual information on their social positions, interests

and stakes in the system as well as on the political, economic and social conditions

within which they function.

Causes of Corruption

Corruption is a phenomenon that takes place due to the presence of a number

of factors. An understanding of such factors requires, among other things, a kind of

26
www.renearchgate.net/publication/238196305, last visited on 2nd April.
27
Handbook of comparative and development public Administration Ali Farazmard, Altaic Unity,
Florida, 2001.
28
John Augusto Sigora, Individual Empowerment in The International System Brazil, 2012.
general framework for a clearer understanding of the causes of corruption, especially

from a broader perspective.

Genesis of corruption can be explained by looking at three levels International,

national and individual institutional levels. Competitiveness of international markets

provides multinational companies of various sizes with an incentive to offer bribes to

gain an advantage over competitors. At the national level basic development strategy

of any government moulds opportunities and incentives for corruption. At the same

level three relationships between the government and the civil service, between the

government and the judiciary and between the government and the civil society also

affect the nature and discussions of corruption. Three areas of government activity

customs administration, business regulation and management of foreign aid act as

sources of corruption at the level of individual institutions.

Corruption also results from the presence of a number of factors. These include

rapid economic and social change, strong kinship and ethnic ties, new institutions,

overlapping and sometimes conflicting views about what is proper public behavioiur,

governmental monopoly over economic activities, political softness, widespread.

Some of the major reasons as to why people “collude in different ways,

rationalize corrupt practices and tolerate corruption in a large scale” are because of the

presence of number of factors. These are governments act as monopolies in many

respects, discretion that government and its monopolistic public agencies enjoy in their

decision making and allocative roles, lack of effective accountability in government

except in the nominal sense of presenting annual audited accounts and reports to

parliament or answering questions in the parliament, citizens have limited information

about the rules of the game and the standards of service they can expect from public

agencies and exposure of the average citizen to corruption in the public sector tends to

be episodic.29

Forms of Corruption

Corruption takes many forms. These forms are acceptance of money and other

rewards for awarding contracts, violation of procedures to advance personal interests,

kickbacks from developmental programmes or multi-national corporations, pay-offs

for legislative support, diversion of public resources for private use, overlooking

illegal activities, intervening in the justice process, nepotism, common theft,

overpricing, establishing non-existing projects and tax collection tax assessment

frauds.30

These many varieties of corruption can be categorized further in terms of their

nature. Corruption can be foreign-sponsored, institutionalized, outcome of political

scandal and administrative malfeasance.31 In foreign-sponsored corruption the main

actors are public officials, politicians, representatives of donor and recipient countries.

Bureaucratic elites, politicians, businessmen and middlemen are responsible for

political scandal. Corruption becomes institutionalized as a result of the support

provided by bureaucratic elites, politicians, businessmen and white-collar workers. in

administrative malfeasance petty officials and interested individuals play major role.

29
Corruption: who will bell the cat? Public affairs Centre, Banglore, 1997.
30
Gest Tinggaard Sverdsen, “The Political Economy of the European Union”, Edward Elgar
Published USA 2003.
31
Gerald E. Caiden, O.P. Divided, Where Corruption Lives, Kumarian Press 2001, Michigan.
 Corruption has been differentiated into three types collusive, coercive and non-

conjunctive32. In collusive corruption the corruptees themselves are willing and active

participants in the process and use of corruption as an instrument for inducing wrong

action or inaction on the part of authorities, deriving benefit greater than the costs of

corruption on their part. Corruption is forced upon the corruptee by those in the

position of power and authority in coercive corruption. In non-conjunctive corruption

benefits are obtained at someone else’s cost and victims are unaware of their

victimization. Five major strategies mystification, distancing, folklore, colonization

and pacification have been used by the beneficiaries to protect, promote and sustain

corruption in diverse contexts33.

Costs of Corruption

Corruption is not cost neutral. There have been claims that not everything is

bad about corruption. Its effects can be positive too. corruption, among other things,

assists in capital formation; fosters entrepreneurial abilities, allows business interest to

penetrate bureaucracy and permits the logic of market to insinuate itself into

transactions from which public controls exclude it.34 But overwhelming evidence in

recent decades suggests that the impact of corruption has been and continues to be

negative on all fronts. Corruption has a negative, deleterious and devasting influence

on investment and economic growth, administrative performance and efficiency and

political development. Continuance of corruption in a country leads to economic

malaise and squandering of public resources, lowers governmental performance,

32
Review of International affairs, Federation of Yugoslovia Journalistic, 2009.
33
www.cdrb.org/Journal/2003/1/1.pdf, last visited 11th April, 2016.
34
Deborah Brauttigam, “Governance and Economy”, World Bank, 1991.
adversely affects general morale in the public service, jeopardizes administrative

reform efforts and accountability measures, and perpetuates social and economic

inequalities.35 Corruption reinforces political instability and underdevelopment.36 In

short, corruption impedes economic growth, stifles entrepreneurialism, misuses scarce

national resources, weakens administrative capacity, contributes to serious political

decay and undermines stability, democracy and national integration.37

Checking Corruption

Checking corruption is no easy task. Still no one denies the need to check

corruption effectively. It may not be possible to eradicate corruption completely but

then vigorous and determined actions will go a long way to minimize it. The masseurs

suggested are too many and defy any easy characterization. To contain and minimize

corruption a number of measures have been recommended. These include: driving out

corruption by means of usually one-off purges or campaigns, setting up of anti-

corruption boards, commissions and the like, campaign for moral regeneration or

moral re-armament, strengthening of checks on abuse of power and the enhancement

of accountability of the powerful as well as public officials, ensuring transparency and

openness in governmental activities, develop positive social attitudes, enforcing a code

of public ethics, supporting the role of media, improving educational procedures.38

To reduce corruption drastically, a number of fundamental changes must be

brought about. These include: reducing the opportunities for corrupt transactions by

cutting back the state’s activities; emergence of new centres of power outside the

35
www.unpan1.un.org/intradoc/groups/public/documents, last visited 23rd April, 2016.
36
Kuotsai Tom Liou, Handbook Eastern, Hemisphere Distributors, Switzerland, 1998
37
Ikram ul-Majeed Sehgal, Defence Journal Volume 7 2004.
38
Luigi Paganetto, Achieving Dynamism is an Anaemic Europe, Springer Publisher, 2015.
bureaucracy; development of competitive party politics; ascendance of universalistic

norms; effectuation of far-reaching administrative reform measures affecting policy,

institutional and process levels; strengthening of preventive structures and tightening

of prosecuting techniques.

What is important about checking corruption is that to be successful one must

take into consideration both short-term and long-term views combating corruption.

Petty corruption takes many forms. Payments are required simply to obtain an

application form or a signature, to secure a copy of an approved sanction, to ensure

proper services and billing from telephone, natural gas, electric power and water

employees.

Project corruption permeates both public and private sector contracting. A

substantial commission must be paid to secure large public sector contracts in

Bangladesh.

Eradicating Corruption

Eradication of corruption should be the nation’s number-one priority in view of

the ever-increasing horizon of political and administrative corruption and its baneful

multifarious effects on the society-at-large.it needs to be understood by all that

eradication of corruption is only possible if strong political commitment exits. Without

strong political commitment, bureaucratic reorientation and a vibrant and effective

civil society, checking corruption turns into a very difficult almost impossible task. In

the context of Bangladesh only radical and fundamental policy measures initiated and

strongly backed by a committed political leadership and supported and implemented

by a reoriented bureaucracy and watched and monitored by an organized and vocal

civil society can control corruption.

Judicial Interpretation of Corruption

Corruption in our country has a historical perspective of its own. In the case of

State of M.P. vs Ram Singh.39, the Supreme Court observed that “the menace of

corruption was found to have enormously increased by the First and Second World

War conditions Corruption, at the initial stages, was considered to be confined to the

bureaucracy, which had the opportunities to deal with a variety of State largesse in the

form of contracts, licences and grants. Even after the war, the opportunities for

corruption continued as large amounts of government surplus stores were required to

be disposed of by public servants. As a consequence of the wars, the shortage of

various goods necessitated the imposition of controls and extensive schemes of post-

war reconstruction involving the disbursement of huge sums of money which lay in the

control of the public servants, giving them a wide discretion, with the result of luring

them to the glittering shine of wealth and property”. The Court observed that “in order

to consolidate and amend the laws relating to prevention of corruption and matters

connected thereto, the Prevention of Corruption Act, 1947 was enacted which was

amended from time to time. In the year 1988 a new Act on the subject, being Act 49 of

1988, was enacted with the object of dealing with the circumstances, contingencies

and shortcomings which were noticed in the working and implementation of the 1947

Act.” In the same case, the Supreme Court further observed:

39
State of M.P. vs Ram Singh, 2000 (5) SCC 88.
 “Corruption is termed as a plague which is not only contagious but if not

controlled, spreads like a fire in a jungle. Its virus is compared with HIV leading to

AIDS, being incurable. It has also been termed as royal thievery. The socio-political

system exposed to such a dreaded communicable disease is likely to crumble under its

own weight, Corruption is opposed to democracy and social order, being not only anti

people, but aimed and targeted against them. It affects the economy and destroys the

cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause

turbulence – shaking the socio-economic political system in an otherwise healthy,

wealthy, effective and vibrating society”.

Criminalization of politics

Democracy implies rule of law and holding of free elections to ascertain the

will of the people. But in quite recent times this peaceful process of social change has

been much vitiated. Criminalization of politics has become a headache for the Indian

democracy. It’s shameful to admit that in the world’s largest democracy the cult of the

gun prevails; Goondas and Criminals are hired to kill political rivals etc. In this way

the entire democratic process is negated. What’s more surprising and rather shameful

is that these people even after committing serious criminal offences make their way to

the Parliament and Assemblies, which is the highest governing body in the country.

The Vohra Report, submitted by the former Indian Union Home

Secretary, N.N. Vohra, in October 1993, studied the problem of the criminalisation of

politics and of the nexus among criminals, politicians and bureaucrats in India. The

report contained several observations made by official agencies on the criminal

network which was virtually running a parallel government. It also discussed criminal
gangs who enjoyed the patronage of politicians of all political parties and the

protection of government functionaries.

Representation of People Act challenged in the Supreme Court

In an event that could bring a landmark change in Indian politics and

governance, the Supreme Court asked the Centre to respond to a proposition that the

law allowing Members of Parliament (MP) and Members of Legislative Assemblies

(MLA) to continue despite being sentenced to more than two years' jail term upon

conviction in a criminal case was discriminatory and encouraged criminalization of

politics.

The PIL which was filed by an advocate Lily Thomas contended that an

anomalous situation existed under the Representation of People Act, where one

provision debarred a person from contesting election for six years on conviction in a

criminal case with two years imprisonment while the other allowed MPs and MLAs to

continue if they filed an appeal within three months of the judgment of conviction.

Senior Advocate Fali S Nairman, who appeared as amicus curie in the PIL

cited several judgments of the apex court on this point and said that in one case, it had

held that the presumption of innocence of a person ended after a trial court convicted

him of an offence.

For the survival of the healthy democracy as per Will of our freedom fighters,

Constitution makers and public at large following suggestions are being

recommended:
Promoting Intra Party Democracy and Transparency

Whether by design or by omission, our Constitution does not provide for

the constitution and working of the political parties, though they are the heart of a

parliamentary democracy. A parliamentary democracy without political parties is

inconceivable. Yet the Constitution except the Tenth Schedule, inserted in the year

1985 does not even speak of political parties. The German Constitution (Basic Law for

the Federal Republic of Germany, 1949), enacted almost simultaneously with our

Constitution, provides for the establishment and working of the political parties. 40 Thus

if the party doesn’t allow candidates with criminal records to contest in the election

just imagine, how fair and free would be the democratic process in India.

Fast Track Courts for Politicians with Criminal Records

Many criminals are just allowed to contest in the elections just because they are

not convicted and under the trial of court. This practice can be avoided if special

arrangements are made for speedy trial of the politicians with criminal records.

Because it needs to be understood that such people should not be allowed to sit in the

highly esteemed house of parliament, which decides the fate of the country.

The Vohra committee appointed by the Central Government under

chairmanship of Mr. M. N. Vohra to look into this problem said in its report that the

mafia network was virtually running a parallel government, pushing the State

40
1. Art. 21 of the German Constitution read’s on political parties, “Political Parties Shall participate in
the formation of the political will of the people. They may be freely established. Their internal
organisation must conform to democratic principles. They must publicly account for their assets and for
2. Parties that, by reason of their arms or the behavior their adherents, seek to undermine or abolish the
free democratic basic order or to endanger the existence of the federal republic of germany shall be
unconstitutional. The federal constitutional court shall rule on the question of unconstitutionality
3. Details shall be regulated by federal laws.
apparatus into irrelevance. A petty dada finds it easy to become a feared representative

of the people. Mafia gangs enjoyed the patronage of local level politicians and that

some gang members even got elected to the Assemblies and Parliament.

Criminalization of politics in India has attained a stage, where it needs serious

attention from the citizens, government and political parties as there was a steady

decline in values of all sections of our society. Criminalization of politics has led to

immense pressure on functioning of political institution. The worst part of picture is

that “criminal record” becomes an essential qualification for entry into politics. In

India Politics is not a social service anymore, instead it emerged as a lucrative

profession or business. Today it is used to believe that crime is the shortest access to

legislature and parliament of India. Further success rate of criminals into electoral

process is alluring the young blood of country as a source of negative inspiration for

them. It is now believed that the safest haven for criminals is politics and political

parties have gone overboard in associating criminals with them more because of their

muscle and money power, which is supposed to ensure victory in polls.

Criminalization of the political system is threatening the very roots of democracy in

India.

Following are the reasons for the criminalisation of politics

 Political Culture of India

 A banal remark has been in frequent use in Indian politics since last few years

that “innocent until proved guilty.” This has become a boon for the criminal-

politicians because investigations can always be manipulated and notorious

 judicial delays ensure that even the worst criminals are not convicted for

decades

 Lack of ethics or values in Indian politics, generally all major or minor political

parties in India used to play blame game, instead of finding a collective

solution of the problem. Let me tell you the significance of ethics in politics of

India by mentioning “Omar Abdullah episode” happened in J&K legislative

assembly. On 28th July 2009, Jammu and Kashmir Chief Minister Omar

Abdullah resigned on moral grounds from the post after a senior PDP leader

alleged that he was involved in the Srinagar sex scandal. There was high drama

in the Assembly when Abdullah said he would step down and not return till the

allegations were proved wrong. Members of his party, National Conference,

surrounded him and tried to physically stop him from leaving. Congress in-

charge of state Prithviraj Chavan had tried to stop Abdullah and asked him not

to resign. Most noticeable thing during this whole episode was reactions which,

came from political lobby of India. Many senior and prominent politicians in

Indian politics declared Omar Abdulla an emotional fool and immature fellow

because he resigned on the civil or moral grounds. It clearly shows that

resigning on moral grounds in India considered as an act of foolishness. Does it

mean that Railway Minister [Lal Bahadur Shastri] during Nehru regime, who

gave his resignation on moral grounds after a rail accident, was an emotional

fool? We all know the moral of story.41

 Politics of coalition [an emerging trend in India]

41
M.O. Malhai, Reminiscencer of the Nehru Age, Vikas Publication House New Delhi, 1978.
  Week civil society in India

 According to my opinion the problem of criminalization of politics is very

much interlinked with all other major problems prevailed in India like

illiteracy, poverty, corruption, lack of awareness and sense of responsibility as

an Indian citizen

 Inadequacy of laws to cater this problem

 Lack of initiative in mango peoples [Aam Aadmi]

To check the rot, several committees and commissions have been appointed for

electoral reforms and to look into the gravity of matter. It seems that establishing

committees/commissions becomes a routine activity of Indian government or we say

that it is a new trend in vogue! These committees have suggested several measures like

T.N. Seshan in 1992 [then Chief Election Commissioner of India] aimed at eradicating

criminalization of politics. With the efforts of election commission in India, now

declaration of all charges pending against a political aspirant becomes obligatory

through an affidavit along with nomination form. There is a limit [virtual] on election

spending during campaign etc. The concept of “judicial Activism” is also worth

mentioning in this issue. But still a lot has to be done to stem the rot. However, law

alone cannot clean the electoral system.

1. All Political parties instead of blaming each other should evolve a code of ethics

among themselves by consensus and not give ticket to such criminal elements

[Stop nurturing crime in politics]

2. The Election Commission has made various recommendations regarding partial

state funding of polls which should be given a serious thought by government

 3. Steps should also be taken to ensure transparency in the funds of political

parties; if it requires framing new laws then government should not hesitate in

going ahead

4. Government should adopt an integrated approach towards this problem

5. The candidate should not be allowed to contest election if charges are framed

against such person by the court [does not matter whether charges are major or

minor]

6. Vigilant public opinion is also required to put pressure on government

7. People have to be sensitized about the malaise of the electoral process. Only

then, free and fair poll can be conducted, which will lead to strengthening of

democracy in India.

8. Youngster along with civil societies and voluntary groups can spread awareness

on mass level so that people can choose educated, sincere, dedicated, transparent

and deserving candidates as their political representatives

9. I will strongly recommend and urge to youngsters for being a part of country’s

politics instead of leaving country to augment brain-drain. Youngsters must

come forward to make a drastic and positive change in Indian Politics.

10. Contribution of candid and responsive media may be last but certainly not least

Criminalisation of politics means moulding politics in a criminal shape. This

trend has been growing fast since a few decades in our country. Our Constitution

provides that the representatives elected by the citizens of our country will govern it.
 The representatives should be idle and they should have the qualities of a social

servant. They must think and work for the welfare of the people at large in the interest

of the nation. Our constitution ensures a Socialist, Secular State and equality, fraternity

among its citizens. Our country has a democratic set-up which is by the people, for the

people and of the people. It means the peoples' representatives should always be

conscious of the good governance so that the ideals of constitution must be achieved

for a few decades there have many changes in our politics. Good governance is not the

prime concern of the governing people; they are guided by their own interests and

whims. Persons belonging to criminal background are becoming our representatives.

A new trend of giving tickets to the confirmed criminals and history sheeters or

even to the persons behind the bars has grown very rapidly more than that the situation

appears to be more alarming when we find such persons being elected for the State

Assembly or Parliament. Elections are won not by right but by might. It seems that we

are living in a 'jungle raj' where there is no law.

Though democracy implies 'rule of law' and the holding of free election to

ascertain the will of the people but it has been much vitiated. The criminalisation of

Indian politics and consequent cult of gun has created great threat to the life of the

common people. The great leaders of all political parties and intellectuals deliver

eloquent speeches expressing their abhorrence at the infiltration of criminals into the

electoral area.

Stress is laid on eliminating the use of muscle power in the electoral process.

Yet, the majority of the parties remain satisfied with expressing such pious sentiments.

No one is seriously concerned to check this process of criminalisation. The House of

State Assemblies and Parliament always witness with the abuses and quarrels among

its members.

This criminalisation has moved all the ideals of democracy. No one can say

what will be the end of this alarming situation. It becomes the duty of the genuine

mind in this critical situation to make efforts to save our democracy from this menace.

If the criminals continue to flourish in this way, nothing will remain intact. No one will

be spared even the creators of this situation. Hence everyone must take it seriously.

Democracy implies rule of law and the holding of free election to ascertain the

will of the people. But in quite recent times this peaceful process of social change has

been much vitiated. Violence, rigging, booth-capturing have become the order of the

day. This fact was highlighted during the elections to the local bodies such as District

Boards, Municipalities and Municipal Corporations and elections to the Lok Sabha and

a number of state legislatures. It was found that confirmed criminals and history

sheeters, even those who were behind the bars at the time were given tickets by

different political parties and what is more surprising is the fact that they won the

elections. There was violence on a large scale, not in meheyam alone, but in a number

of other places and hundreds of lives were lost. The cult of the gun prevailed; goondas

and criminals, often hired for the purpose, captured booths, indulged in rigging and

violence or threats of violence, and in this way the entire democratic process was

negated.

Elections in India have been mutilated by the evil influences of money and

muscle power. This has led to criminalization of electoral politics. The criminalization

of politics continues to be a big concern, with an increase in the number of MPs with
criminal records. It is evidence to the undemocratic and autocratic selection and

nomination of candidates by political parties. In order to ensure the win ability of

candidates, parties ignored honesty to give preference to money power and muscle

power.

Criminalization of Politics can be visualized into two different senses. In

narrow sense it refers to the direct entry and interference of Criminals into State

legislatures and parliament of India, while on wider sense it refers to interference of

criminals into politics either directly or indirectly like financing any candidate,

providing anti-social manpower, booth capturing, contract killing of rival candidates,

providing muscle power services, as well as campaigning or canvassing for any

candidate contesting elections. Since last two decades the competitive use of anti-

social forces for the mobilization of party funds, for management of elections,

organizing meetings and conference and even recruiting workers at lower levels from

among anti-social elements has increased many folds. Approximate all political parties

from national to regional taking services of criminals to win election. Earlier criminals

used to lend outside support but now they themselves have entered in the electoral

arena and have become not only members of the house but even have become

ministers. Thus we have a new phenomenon in Indian politics called “Tainted

ministers.”

Though democracy implies 'rule of law' and the holding of free election to

ascertain the will of the people but it has been much vitiated. The criminalisation of

Indian politics and consequent cult of gun has created great threat to the life of the

common people. The great leaders of all political parties and intellectuals deliver
eloquent speeches expressing their abhorrence at the infiltration of criminals into the

electoral area.

Stress is laid on eliminating the use of muscle power in the electoral process.

Yet, the majority of the parties remain satisfied with expressing such pious sentiments.

No one is seriously concerned to check this process of criminalisation. The House of

State Assemblies and Parliament always witness with the abuses and quarrels among

its members. This criminalisation has moved all the ideals of democracy. No one can

say what will be the end of this alarming situation. It becomes the duty of the genuine

mind in this critical situation to make efforts to save our democracy from this menace.

If the criminals continue to flourish in this way, nothing will remain intact. No one will

be spared even the creators of this situation. Hence everyone must take it seriously.

The Government and law enforcing authorities remained helpless in the face of

this muscle-power and gangsterism unlimited. The general view of the society today as

certain Chief Ministers, are having association with criminals and also M.P.s and

M.L.A.s are men with criminal records. Criminals have infiltrated into Indian socio-

political life and future of Indian democracy seems to be bleak. Gun-looting goondas

and gangsters move about merrily eliminating their political opponents and creating

terror, and nobody seems to fear much for this show of naked and unabashed violence.

It seems that nobody has the means or the will to put down such nefarious activities

with an iron hand.

Criminalization of Indian politics and the consequent cult of the gun is the

greatest danger that faces Indian democracy to-day. Leaders of all political parties and

intellectuals deliver eloquent speeches expressing their abhorrence at the infiltration of

criminals into the electoral arena. Stress is laid on eliminating the use of muscle power

in the electoral process. Yet, the majority of the parties remain satisfied with

expressing such pious sentiments. In any case there is no inhibition in securing the

services of musclemen and anti-social elements in order to ensure success at the

hustings. Quite often the plea put forward for this purpose is that it is a defensive

measure to off-set and resists the doings of the anti-social elements engaged by the

rival candidates. The malady has gone deep into our body politic and unless we can

deal with it with a firm hand in ruthless manner, the danger is that the electoral process

would pass into the hands of anti-social elements and thus slide down and degenerate

into a farce.

The entry of criminals into the political arena has caused havoc in the sphere of

the administration of criminals’ justice.42 The likelihood of injustice in a democracy is

supposed to be much less than under systems where civil liberties are suppressed and

there is absence of democratic norms. There is thus a close relationship between

democracy and rule of law. These two along with liberty, are indeed considered to be

the three faces of the supreme trinity which presides over the destiny of all liberal

societies. Each one of them is vital for the survival of the other two, for the negation of

one would prove fatal for the other two.

All right minded citizens should put their head together to find out ways and

means of saving Indian democracy from this menace. If criminals continue to flourish

without any check and carry on their activities no body’s life, property and honor

would be safe. Indian democracy must be saved from the prominence of criminals and

42
www.publishyourarticles.net/knowledgehub/essay/criminalisationofpolitics, last visited on 2nd April
all the evil that it implies. Under no circumstance should law be taken into one’s own

hands. However, in this respect the rules of the country themselves are not free from

blame, for they have been guilty of inciting the people to take recourse to violence.

Politics is the most common phenomenon in the world today. Politics is the

concept which provides the manner and the rules to govern a state and country. Its

approach is to provide good governance. The persons who are related to this

phenomenon are known as politicians. They are supposed to be the persons with all the

qualities needed for the good governance.

Criminalisation of politics means moulding politics in a criminal shape. This

trend has been growing fast since a few decades in our country. Our Constitution

provides that the representatives elected by the citizens of our country will govern it.

The representatives should be idle and they should have the qualities of a social

servant. They must think and work for the welfare of the people at large in the interest

of the nation. Our constitution ensures a Socialist, Secular State and equality, fraternity

among its citizens. Our country has a democratic set-up which is by the people, for the

people and of the people.

Under Sub-clause (i) of Clause (d) of Sub-section (1) of Section 100 of the Act,

195143, the improper acceptance of any nomination is a ground for declaring the

election of the returned candidate to be void. This provision is to be read with Section

43
“100. Grounds for declaring election to be void—(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion—xxx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially
affected—
(i) by the improper acceptance or any nomination, or the high court shall declare the election of the
rehired candidate to be void. Xxx
36(2) (a)44
which casts an obligation on the returning officer to examine the

nomination papers and decide all objections to any nomination made, or on his own

motion, by reference to the date fixed for the scrutiny of the nominations. Whether or

not a candidate is qualified to contest is to be determined with reference to the date

fixed for scrutiny of nominations. In other words, if a person is found to be

disqualified for being chosen as or for being a member of the legislature as on the date

fixed for scrutiny of nominations, his nomination is liable to be rejected. Therefore, in

the Prabhakaran case, act of the Returning Officer to accept the nomination of the

respondent was incorrect and the election of the respondent stands to be declared void.

Further, the Honourable Court pointed out that even if the candidate whose nomination

is rejected files an appeal in a higher court and the appellate order has a bearing on the

conviction of the candidate, the appellate order would not have the effect of wiping out

the disqualification. What is relevant is only the sentence of imprisonment as on the

date of scrutiny of nominations. An appeal may be field or even an order under Section

389 of the Code of Criminal Procedure, 1973 suspending the execution of the sentence

may have been passed. But, they are of no significance in wiping out the

disqualification of the candidate as the date of scrutiny of nominations is the focal

point.

44
“36. Scrutiny of nominations—xxx
(2)The returning officer shall then examine the nomination papers and shall decide all objections which
may be made to any nomination and may, either on such objection or on his own motion, after such
summary inquiry, if any, as the thinks necessary, reject any nomination on any of the following
grounds:--
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any of the following provisions that may be
applicable, namely;
Article 84, 102, 173 and 191, Part II of this Act, and sections 4 and 14 of the Government of Union
Territories Act, 1963 (20 of 1963); xxx”.
 Sub-section (3) of Section 8 of the Act, 1951 says that a person convicted of

any offence and sentenced to imprisonment for not less than two years stands

disqualified. The question is whether the sentence of imprisonment mentioned is with

reference to a single offence. Is a person who is convicted of several offences wherein

the sum total of the sentences of those offences is more than two years liable to

disqualified under the meaning of sub-section (3) of section 8. This was one of the

questions which came before the Honourable Supreme Court in the Prabhakaran case.

Answering the issue regarding the interpretation of the word ‘any’ which is used in

sub-section (3) of section 8, the court held that the adjective ‘any’ qualified the nature

of the offence mentioned and not the number of offences. Therefore, merely because

the candidate is convicted of several offences and not a single offence with a sentence

exceeding two years, he does not qualify to contest elections. Further, in the case of

consecutive sentences for several offences, the aggregate period of imprisonment

awarded as punishment and in the case of punishments consisting of several terms of

imprisonment made to run concurrently, the longest of the several terms of

imprisonment would be relevant to be taken into consideration for the purpose of

deciding whether the sentence of imprisonment is for less than two years or not.

Section 8(4) of the Act, 1951

Sub-section 4 of Section 8 of the Act, 1951 is an exception carved out from

sub-sections (1), (2) and 93). For the purposes of disqualification, the act deals with

incumbent members of the legislature on a different footing from non-members. The

provision reads as hereunder:

“Section 8.-

(4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section

(3) a disqualification under either subsection shall not, in the case of a person who on

the date of the conviction is a member of Parliament or the Legislature of a State, take

effect until three months have elapsed from that date or, if within that period an appeal

or application for revision is brought in respect of the conviction or the sentence, until

that appeal or application is disposed of by the court.”

The provision states that if an incumbent member is convicted of any offence

mentioned in the section, the disqualification does not take effect till a period of three

months from the date of conviction elapses. If an appeal or application for revision is

brought with respect to the conviction or sentence, then the disqualification does not

operate till that appeal or application is disposed of by the court. Therefore, the

provision serves as immunity for all the incumbent members from being disqualified.

The intention of the legislature in enacting such a provision is to protect the stability

and existence of the House. As pointed out in the Prabhakaran case (supra), there

would be two immediate consequences if the disqualification were to operate

immediately from the date of conviction, as in the case of non-members. “First, the

strength of membership of the House shall stand reduced, so also the strength of the

political party to which such convicted member may belong. The Government in

power may be surviving on a razor edge thin majority where each member counts

significantly and disqualification of even one member may have a deleterious effect on

the functioning of the Government. Secondly, bye-election shall have to be held which

exercise may prove to be futile, also resulting in complications in the event of the
convicted member being acquitted by a superior criminal court.” However, more often

than not, the members who are convicted would file an appeal or application with

regard to the conviction or sentence within three months from the date of

disqualification. The time taken for the appeal to be disposed of by the court is

generally sufficient enough for the member to continue to be so for a considerable

period of time. In this regard, the Supreme Court ruling in Lilly Thomas vs Union of

India45 served as a much needed panacca to solve the issue.

In the said case, issue of the constitutional validity of sub-section (4) of section

(8) of the Act was raised. The language of Articles 102 and 191 of the Constitution is

clear that the Parliament has the power to enact any law regarding the disqualifications

for membership to either House of the Parliament or of the State Legislatures. It is in

exercise of this power that the Representation of People Act, 1951 is enacted. The

Honourable court pointed out that the grounds for disqualification mentioned in the

aforesaid Articles are both for being chosen and for being members of the legislatures.

Therefore, the same set of disqualifications applies for non-members and members.

The Constitutional Bench of the supreme Court, in Election Commission of India V.

Saka Venkata Rao46 opined that the language of Article 191 suggests that the same set

of disqualifications operates for election and for continuing as a member. Article 102

(1) is identically worded with article 191 (1). Therefore, the principle applies to Article

102 (1) in as much as it applies for Article 191 (1). The court, therefore, held that the

Parliament is not empowered to enact different provisions concerning election and for

continuing as members. The principle, as the Supreme Court pointed out in the case, is

45
Writ Petition (Civil) No. 490 of 2005.
46
AIR 1953 SC 210.
“if because of a disqualification a person cannot be chosen as a member of Parliament

or State Legislature, for the same disqualification, he cannot continue as a member of

Parliament or the State Legislature.”

Further, Articles 101 (3) (a) and 190 (3) (a), the wordings of which are

identical state that “if a member…becomes subject to any of the disqualifications

mentioned in clause (1) or clause (2) of article 102 (or 191), … his seat shall thereupon

become vacant.” Therefore, if a person is disqualified as per Articles 102 or 191, as the

case might be, then his seat shall become vacant.

Articles 101 and 190 also prohibit deferring the date of disqualification for a

member, which is the case as per sub-section (4) of section 8 of the Act, 1951. By

virtue of the fact that the Parliament is not empowered to enact different provisions

and Articles 101 and 190, The Supreme Court held that the saving provided for

incumbent members under sub-section (4) of section 8 of the Act, 1951 is ultra vires

the Constitution.

Sub-section 94 of section 8 has been struck down by the Supreme Court for

being ultra vires the Constitution. This, to a very large extent, is helpful in the

decriminalization of politics for those members who are convicted are prohibited from

continuing in office with immediate effect. However, the problem of criminalization

continues to exist despite the said decision. Under the existing provisions of the act,

1951, the ground for disqualification is conviction under any of the offences

mentioned in section 8 of the Act. Once the criminal proceedings are initiated, the time

elapsed between the initation and the final order of the court is long enough for the

accused to contest for elections. Prior to the striking down of sub-section (4) of section
8, the long duration of time taken for the pronouncement of the final judgment served

as a blessing to all those candidates with criminal record. Once they were elected as

members, the provision saved them from immediate disqualification despite the

conviction. In this regard, it is necessary to amend the grounds for disqualification.

Therefore, it is opined that framing of charges against the accused should be the

ground for disqualification and not the conviction. If the jude is of the opinion that

there is ground for presuming that the accused has committed the offence, then,

charges are framed against the accused. 47 Therefore, framing of charges implies that

there is sufficient ground for presuming that the accused has committed the offence.

Hence, once the court frames the charges against the accused, he shall be disqualified

from membership.48

In order to achieve the goal of decriminalization of politics, various proposals

concerning the legal provisions related to criminalization have been put forward before

successive Governments at the national level.

The Law Commission of India, suggested that section 8 of the Act, 1951, be

continued in its current form without any amendments. However, with regard to the

offences for which disqualification operates, the Commission proposed that a new

47
“228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused has committed an offence which-
(a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and,
by order, transfer the case for trail to the Chief Judicial magistrate, or any other Judicial Magistrate
of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the
case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon
such Magistrate shall trythe offence in accordance with the procedure for the trial for warrant-cases
instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.”
48
Framing of charge.- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate
is of opinion that there is ground for presuming that the accused has committed an offence triable under
this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the accused.”
section (Section 8B) be inserted to deal with electoral offences and offences having a

bearing upon the conduct of elections under sections 153A and 505 of the Indian Penal

Code, 1860 and those serious offences punishable with death penalty or life

imprisonment. Under the proposed section 8B, framing of charges must be a ground of

disqualification; but this disqualification shall last only for a period of five years or till

the acquittal of the person of those charges, whichever event happens earlier.49

The Election Commission proposed that Section 8 of the act, 1951 should be

amended to disqualify candidates accused of an offence punishable by imprisonment

of 5 years or more even when trial is pending, given that the Court has framed charges

against the person. However, since the law enforcement agencies in India work under

the direct control of the Governments both at the State and at the National level, there

is every possibility of the ruling party misusing the provision by falsely implicating the

opponents at the time of elections. The Commission addressed the issue and hence to

prevent such misuse, the Commission suggested a compromise whereas only cases

filed prior to six months before an election would lead to disqualification of a

candidate. In addition, the Commission proposed that Candidates found guilty by a

Commission of Enquiry should stand disqualified.50

The National Commission to Review Working of Constitution recommended

that the Representation of the People Act, 1951 be amended to provide that any person

charged with any offence punishable with imprisonment for a maximum term of five

years or more, should be disqualified for being chosen as, or for being, a member of

Parliament or Legislature of a State on the expiry of a period of one year from the date

50
Election Commission of India Report, 2004.
the charges were framed against him by the court in that offence and unless cleared

during that one year period, he shall continue to remain so disqualified till the

conclusion of the trial for that offence. It was also suggested by the Commission that

the aforesaid provision must equally be applicable to sitting members as well. In case a

person is convicted of any offence by a court of law and sentenced to imprisonment for

six months or more the bar should apply during the period under which the convicted

person is undergoing the sentence and for a further period of six years after the

completion of the period of the sentence. Further, it recommended that persons

convicted of heinous crimes such as murder, sexual assault, smuggling, dacoity should

be permanently barred from contesting for any political office.51

On the 30th of August, 2013, the Honourable Minister for Law and Justice,

Government of India introduced The Representation of the People (Second

Amendment and Validation) Bill, 201352 in the Rajya Sabha, inter alia, to substitute

sub-section (4) of section 8, so as to provide that the disqualification in view of

conviction under sub-sections (1), (2) or (3) of the said section in respect of a member

of Parliament or the Legislature of a state shall not take effect, if an appeal or

application for revision is filed in respect of the conviction and sentence within a

period of ninety days from the date of conviction and such conviction or sentence is

stayed by a court, and further to provide that after the date of conviction and until the

date on which the conviction is set aside by the court, the member shall neither be

entitled to vote nor draw salary and allowances, but may continue to take part in the

proceedings of Parliament or the Legislature of a State, as the case may be. Be it

51
Part 4.12.2 of the Report of The National Commission to Review Working of Constitution.
52
Bill No. LXII of 2013.

197
enacted by the Parliament of India, the Act shall be deemed to have come into force

from the 10th of July, 2013, the date on which the Supreme Court of India pronounced

the judgment in the Lilly Thomas case supra.

Contesting from Prison

Over the last six decades, Indian politics has seen various facets of

criminalization and it has come across umpteen examples of candidates contesting for

elections from prison and has even managed to gain electoral success subsequently.

The very purpose of contesting for a political office is, in a way, lost if the person

contests elections from prison. It is necessary for a leader or a representative to have

an untainted reputation, so far as his criminal antecedents are concerned. However, we

have often witnessed the ruling parties try abuse their direct control over the law

enforcement agencies against the opponents at the time of elections. The issue of

prohibiting an individual from contesting elections behind bars has its merits and

demerits. Unlike conviction serving as a ground for disqualification from membership,

confinement in a prison is an issue where the role of the law enforcement agency is to

a greater extent and consequently, the levels of political interference too are to a large

extent it is therefore necessary for us to look into the legal provisions with regard to

the issue

Sections 4 and 5 of the Act, 1951 deals with the qualifications for membership

to the House of People and State Legislative Assembly, respectively. It has been

expressly provided in both the sections that a person shall not be qualified, unless she

is an ‘elector’ for any Parliamentary constituency or Legislative Assembly

constituency, as the case may be. Section 2 (e) states that an “elector” in relation to a
constitutency means a person whose name is entered in the electoral roll of that

constituency for the time being in force and who is not subject to any of the

disqualifications mentioned in section 16 of the Representation of the People Act,

1950.” Section 62 of the Act, 1951 deals with the ‘Right to vote’.

Therefore, a person ceases to be an elector if he is in lawful custody of the

policy, save the preventive detention. Though the right may be temporarily taken

away, the ultimate result is that the right to vote is lost or in other words, he ceases to

be an elector. It is quite fair and just that a person who is not an elector should not be

elected. The Honourable Supreme Court, in opined that it. Did not find any infirmity in

the findings of the Patna High Court in the impugned common order that a person who

has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the

1951 act is not an elector and is therefore not qualified to contest the election to the

House of the People or the Legislative Assembly of a State.53

On the 26th of August, 2013, a Bill was introduced in the Rajya Sabha 54 by

which a person in prison serving a sentence of imprisonment or in lawful policy

custody is entitled to contest for the membership of the legislatures. As per the

amendment proposed by the Bill, by reason of the prohibition to vote under sub-

section (5) of Section 62 of the Act, 1951, a person whose name has been entered in

the electoral roll shall not cease to be an elector.

53
The Chief Election Commissioner vs Jan Chaukidar, (Peoples Watch) & Ors. Civil Appeal Nos.
3040/3041
54
of 2004.
The Representation of the People (Amendment and Validation) Bill, 2013, Bill No. LXII of 2013.
Declaration of Criminal Record

For a fair election to take place, it is quintessential that the voter knows the

antecedents of the candidates who are in the electoral fray. Often, the voters are found

to be unaware of the background of their candidates. Further, at the time of elections

the candidates present before the voters, an array of freebies and populist schemes to

galvanize the votes and the voters, particularly the politically illiterate classes, fall prey

to these. They are grossly unaware of the criminal antecedents of the candidate they

intend to vote for. In this regard, several provisions have been enforced to male known

to the voter, the profiles of the candidates seeking the former’s valuable vote.

By an amendment55 enacted in the year 2002, Section 33A titled ‘Right to

Information’ was inserted in The Representation of the People Act, 1951. Sub-section

(1) of section 33A deals with the declaration of the criminal record of the candidate.

As per the provision, a candidate shall in his nomination paper delivered under sub-

section 91) or section 33, inter alia, furnish the information as to whether-

(i) He is accused of any offence punishable with imprisonment for two years

or more in a pending case in which a charge has been framed by the court

of competent jurisdiction;

(ii) He has been convicted of an offence other than any offence referred to in

sub-section (1) or sub-section (2), or covered in sub-section (3), of section

8 of the Act, 1951 and sentenced to imprisonment for one year or more.

Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate

must file an affidavit (Form 26 appended to Conduct of Election Rules, 1961)

55
Act 72 of 2002, Section 2 (w.e.f. 24-8-2002)
regarding the information which is required to be furnished as per the provisions of

sub-section (1) of section 33A.

Section 125A of the Act, 1951 prescribes the penalty for contravening the

provisions of section 33A. As per section 125A, if a candidate fails to furnish the

information required to be furnished as per sub-section (1) of section 33A; or furnishes

false information; or conceals any information, he be punishable with imprisonment

for a term which may extent to six months, or with fine, or with both.

In its report on Proposed Election Reforms, 2004, the Election Commission of

India recommended that an amendment should be made to Section 125A of the R.P.

Act, 1951 to provide for more stringent punishment for concealing or providing wrong

information on Form 26 of Conduct of Election Rules, 1961 to minimum two years

imprisonment and removing the alternative punishment of assessing a fine upon the

candidate.

In order to achieve the objective of conducting fair elections, it is quite

necessary for the voters to know the criminal profile of their candidates and it is in this

direction that section 33A was inserted in The Representation of the People Act, 1951.

However, if the candidate furnishes concealed or false information in the said affidavit

relating to his criminal record, the very purpose of filing the affidavit is defeated. It is

opined that section 125A of the Act, 1951 which deals with penalty for the said

offence is not in accordance with the gravity of the offence. In order ot achieve the

goal of decriminalization of politics, it is quite necessary to strengthen the penal laws

so as to put an end to the culture prevalent. Therefore, a contravention of section 33A

of the Act, 1951, if proven, in addition to the existing punishment, should result in the

disqualification of the member, who has so contravened.

In the recent past several Commission have been set up to examine the issue of

electoral and political reforms. They include the Goswami Committee on Electoral

Reforms (1990), the Vohra Committee Report (1993), Indraji Gupta Committee on

State Funding of Elections (1998), Law Commission Report on Reform of the

Electoral Laws (1999), National Commission to Review the Working of the

Constitution (2001), Election Commission (2008). Recently, the Government has once

again appointed a Law Commission to examine the issue disregarding the excellent

recommendations made by the previous Committees and Commissions.

There are several radical suggestions including changing the system from the

first past the post to a US style Presidential system, or a European style proportional

representation system, or French style run-off elections between the top two candidates

if no one gets more than 50% of the vote. There are various hybrids of these as well,

including the Japanese multi member constituencies where in addition to the first past

the post winners, electoral districts elect several members based on number of votes a

party gets. These issues have been discussed at great length by scholars as well as the

various Commissions referred to earlier. The three major issues that need to be

balanced are (i) the quality of representation within a constituency, that the French and

Japanese systems improve, (ii) the quality of representation of a political party that the

proportional representation system improves as seats are allocated in some proportion

to the overall votes a party gets, and (iii) a faster decisive functioning of Government
that a Presidential system tries to achieve. Given deep ideological preferences, we are

unlikely to achieve a consensus on this and may not see a change in the near future.

Another important legal remedy is to enact a Bill to regulate the functioning of

Political Parties. One such draft Bill has been prepared and circulated for discussion by

civil society under the Chairmanship of a former Chief Justice of India. It seeks to

introduce greater democracy and transparency in Political parties as this is vital for

reforming our system. Political parties nominate candidates and contest elections. A

party that is internally autocratic cannot function democratically once it comes to

power. A small but growing section of concerned and informed citizens is pushing for

such a Bill, Companies, Banks, Cooperatives, NGOs, Trusts, Societies, Temples,

Mosques, Churches and other places of worship, Hospitals, Educational Institutions

and soon have to comply with increasingly interfering State and Government

regulations and legislation. Only political parties are relatively exempt.

Going beyond legal remedies, the administrative systems introduced by the

Election Commission are largely to be commended. Starting with the Code of

Conduct, successfully curbing election related violence and booth capturing, tracing

the flow of money and liquor to the extent possible during elections, putting in systems

for election expenses within the existing laws and other measures have improved

things considerably. However, the vexed question of misuse of money during elections

has not been fully addressed. The system of election observers needs to be

strengthened or re-looked at. When even the CECs have publicly said that blackmoney

is freely used in elections in the Lok Sabha has been set aside. Meanwhile, the public

and the media openly report this. The first “Corrupt Practice” listed in the RP Act is
burbling voters during elections. Surely it merits action. A liberal interpretation of the

powers of the Election Commission can address this problem. Also, since adequate

information to voters is not available, the candidate affidavits in a summary form

should be prominently displayed in each polling booth so that voters can see them

before voting.

A criminal generally begins criminal activity at local level with petty crimes. In

big cities, he begins with country liquour, gambling, betting and prostitution. The

politicians use criminals for their selfish ends and the criminals and their syndicates

seek their protection and patronage to carry on their criminal and antinational

activities. Vohra Committee found that all over India crime syndicates have become a

law unto themselves even in rural areas and small towns muscle men have become the

order of the day. The report finds sinister link between media and antinational

elements on one hand and bureaucrats and politicians on the other hand.

The criminals help politicians in various ways. As a candidate, they win thee

seat. The intimidation of voters, proxy voting, booth capturing are the other devices

which are carried on by them. In the first two general elections the situation was

different but it changed and kept on changing with each subsequent general election

and today it has become very grim threatening the very existence of the democratic

polity in the country. It has been well highlighted by the Presidential message to the

nation on 14 Aug. 1989 which emphasizes:

 The use of money or muscle power and the totally unacceptable practices of

voters’ intimidation and booth capturing offend the very foundations of our socio-

economic order.56

The criminalization of politics has poisonous effect on the administration of

law and order and criminal justice. The chances of procuring conviction of criminals in

major offences have become increasingly difficult if not impossible. The political

interference in the investigation of offence by police and at different stages of trial

appears to crumbling the criminal justice delivery system. A large number of acquittals

and lighter sentences in most of the cases where the accused is found guilty of the

offence make the mockery of the system.

National Commission on the Review and Working of the Constitution Notes

A stage now has reached when the politicians openly boast of their criminal

connections. A Bihar minister’s statement in the assembly that he patronized and

would continue to patronize gangsters to fight and win elections is a pointer to the

growing phenomena where criminal background has become an invisible requisite to

win elections.

In its annual report of 1984, the Election Commission identified the practice of

booth capturing as the main problem of elections and made numerous

recommendations to get red of it.57 The Supreme Court of India in Sasangouda V SB

Amarbhed58 observed:

56
57
R.Y.S. Peri Shastry, “Elections: A Code of Conduct for Contestants”, XXXVII JPI, 153 at 157.
Annual Report, Election Commission of India, 1984, 77-90.
58
AIR 1992 SCS 1163.
 Both capturing wholly negates the election process and subverts the democratic

set up which is the basic feature of our constitution. During the post independent era

ten parliamentary elections have entrenched democratic polity in this country which

cannot be permitted to be eroded by showing laxity in the matter of booth capturing.59

The Supreme Court has been tough in preventing the criminalization of

politics. The SC in K. Prabhakaran V P. Jayarajan 60 has pointed out that the purpose of

enacting disqualification under section 8(3) of the Representaion of. People Acti is to

prevent criminalization of politics. Chief Justice R.C. Lohati speaking for the majority

observed:

Those who break the law should not make the law. Generally speaking the

purpose sought to be achieved by enacting disqualification on conviction for certain

offences is to present persons with criminal background from entering into politics and

the house – a powerful wing of governance. Persons with criminal background to

pollute the process of election as they do not have many a holds barred and have no

reservation from indulging into criminality to win success at an election.61

Dinesh goswami Committee (1990) suggested that legislative measures must

be taken to check booth capturing, rigging and intimidation of voters. In its 170 th

report, the Law Commission of India recommended that in electoral offence sand

certain other serious offences framing of change by the court should itself be a ground

of disqualification in addition to conviction.62 The commission also noticed:

59
ibid 1167; for booth capturing see S.N. Sharma, Booth Capturing. Judicial Response 41, JJLI (1999),
44-55.
60
AIR 2005 SC 688.
61
ibid 705.
62
170th Report on the Reform of the Electoral Laws, 1999.
 There have been several instances of persons charged with serious and heinous

crimes like murder, rape, dacoity etc. contesting election pending their trial and even

getting elected in a large number of cases. This leads to a very undesirable and

embarrassing situation of law breakers becoming law makers and moving around

under police protection.63

The first report of the Ethics Committee of Rajya Sabha adopted on 1 Dec.

1998 on criminalization of politics and corrective measures noted that provisions exist

in various statues and the rules of procedure but the laws and rules, however, had not

the desired effect. It felt that the problems of criminalization of politics and its causes

and effects could not be tackled by legislation alone. It also noted that disqualifying

persons with criminal record or those with dubious distinction is a very complex issue

and efforts should be made to prevent persons with criminal background from

contesting the elections.

Almost all legislators are, however, believed to be engaged in some kind of

corruption. In fact, a legislator routinely embarks on his legislative career by signing a

false affidavit claiming to have spent much less money on his election than he has

actually done.

It is only natural that, they would want to make at least 10 times of money

backed during their five years in parliament. This, indeed, is the source of the

criminalization of Indian polity” (Shahin Sultan, 2002). As an honest politician one

can no longer think of entering into the election fray. Businessmen and industrial

houses, too, would not support an honest person as he or an occasional she would be

63
http://www.eci.gov.in/proposed_electoral_reforms.pdf, last visited on. 30.9.2008.
useless for them once in parliament. In fact he may even become an obstruction for

them.

Judicial Efforts

The courts are well aware of the problem of criminalization of politics but the

politics is an area where courts do not want to be involved actively. In Deepak ganpat

Rao Salunke v state of Maharashtra64. The Deputy Chief Minister of government of

Maharashtra in a public meeting made the statement that if Republican Party of India

supported the Shivesena BJP alliance in the Parliamentary Election he would see that a

member of RPI was made Deputy Chief Minister of the State. It was held that the

above statement did not amount bribery as defined under section 171 B as the offer

was made not to an individual but to RPI with the condition that it should support BJP-

Shivsena alliance in the election. Thus seeking support of a political party in lieu of

some share in the political power does not amount gratification under section171-B of

the Penal Code.

In Raj Deb vs Gangadhar Mohapatra65 a candidate professed that he was

Chalant Vishnu and representative of Lord Jagannath himself and if any one who did

not vote for him would be sinner against the Lord and the Hindu religion. It was held

that this kind of propaganda would amount to an offence under section 171 read with

section 171of IPC.

The remedies provided in IPC have not proved to be effective because once the

election is over, everything is forgotten. On the other hand, convictional

64
(1999) Cr LJ 1224 (S.C.).
65
AIR 1964 Ori.1.
disqualification for candidature appears more effective. However, judicial

interpretation of 8(3) R.P. Act has not been very satisfactory. An order of remission

does not wipe out the conviction. 66 For actual disqualification, what is necessary is the

actual sentence by the court.67 It is not within the power of the appellate court to

suspend the sentence; it can only suspend the execution of the sentence pending the

appeal. The suspension of the execution of the sentence (imprisonment of not less than

two year) does not remove the disqualification, when a lower court convicts an

accused and sentences him, the presumption that accused is innocent comes to an

end.68

In T.R. Balu v. S. Purushthoman69 it was alleged in the election petition that the

returned candidate had a bigamous marriage and it was admitted by him through an

affidavit submitted at the time of filing the nominations. Hence, his election should be

declared void. Madras High Court upheld the election on the ground that the returned

candidate was never prosecuted nor found guilty or punished for it.

There has been controversy with regard to the beginning of disqualification on

the ground of conviction. A person convicted for an offence is disqualified for being a

candidate in an election. S. 8 of the R.P. Act sets different standards for different

offences. According to S. 8 (3) a person convicted of any offence and sentenced to

imprisonment for not less than two years (other than the offences referred to in S. 8(1)

66
Sarat Chandra vs Khagendra Nath, AIR 1961 SC 334.
67
V. K. Dewan, Election Law 23-24.
68
B.R. Kapur v State of T. N. AIR 2001 SC 3435; see also Dr. Mrs Kiran Jain & P. C. Jain, Chawla’s
Elections: Law & Practice, XXXV (VIIth ed. 1999, repr. 2002).
69
AIR 2006 Mad. 17.
and 92)) shall be disqualified from the date of such conviction and shall continue to be

disqualified for a further period of six years since his release.

In K. Prabhakaran v P. Jayarajah70 the Court considered various issues. It

considered the question whether for attracting disqualification under S. 8(3) the

sentence of imprisonment for not less than two years must be in respect of a single

offence or the aggregate period of two years of imprisonment for different offences.

The respondent was found guilty of offences and sentenced to undergo imprisonment.

For any offence, he was not awarded imprisonment for a period exceeding two years

but the sentences were directed to run consecutively and in this way the total period of

imprisonment came to two years and five months. On appeal, the session court

directed the execution of the sentence of imprisonment to be suspended and the

respondent be released on bail during the hearing of the bail. During this period, he

filed his nomination paper for contesting election from a legislative assembly seat.

During the scrutiny, the appellant objected on the ground that thee respondent was

convicted one sentenced to imprisonment for a period exceeding two years. The

objection was overruled and nomination was accepted by returning officer on the

ground that although respondent was convicted of many offences but he was not

sentenced to for any offence for a period not less than two years. The High Court also

took the similar view but the Supreme Court by majority took the different view. 71

Chief justice Lohati speaking for the majority held that the use of the adjective “any”

with” offence” did not mean that the sentence of imprisonment for not less than two

70
AIR 2005 SC 688.
71
The bench consisted of Chief Justice Lohati and Justices S.V. Patil, B.N.Srikrishna,G.P. Mathur, K.C.
Balkrishnan. Majority judgment was delivered by Justice R. C.Lohati whereas Justice K.C. Balkrishnan
wrote dissenting opinion.
years must be in respect of a single offence. The court emphasized that the purpose of

enacting S. 8(3) was to prevent criminalization of politics.72 By adopting purposive

interpretation of S.8(3), the Court ruled that its applicability would be decided on the

basis of the total termof imprisonment for which the person has been sentenced.

The court also considered the question of the effect of acquittal by the

appellatte court on disqualification. It may be recalled that the Supreme Court in

Vidyacharan Shukla v. Purushottam Lal73 had taken a strange view V.C. Shukla was

convicted and sentenced to imprisonment exceeding two years by the Sessions Court

on the date of filing nomination but the returning officer unlawfully accepted his

nomination paper. He also won the election although conviction and sentence both

were effective. The defeated candidate filed an election petition and by the time when

it came before the High Court, the M P High Court allowed the criminal appeal of

Shukla setting aside the conviction and sentence. While deciding the election petition

in favour of the returned candidate, the court referred to Mannilal V Parmailal74 and

held that the acquittal had the effect of retrospectively wiping out the disqualification

as completely and effectively as if it had never existed. However Vidyacharan Shukla

which had the effect of validating the unlawful action of the returning officer and

encouraging criminalization of politics was overruled by Prabhakaran. The Supreme

Court observed.

Whether a candidate is qualified or not qualified or disqualified for being

chosen to fill the seat has to be determined by reference to the date for the scrutiny of

72
Supra note 16.
73
1981 2 SCC 84.
74
1970 2 SCC 462.
nomination… The returning officer cannot postpone his decision nor make it

conditional upon what may happen subsequent to that date.75

It is submitted that the view taken in the instant case is correct and would be

helpful in checking the criminalization of politics.

Sec. 8(4) of the RP Act accords benefit to a sitting Member of Parliament or

legislative assembly if convicted for criminal offence. According to it, in respect of

such member, no disqualification shall take effect until three months have elapsed

from the date of conviction or if within that period appeal or application for revision is

brought in respect of conviction or sentence until that appeal or application is disposed

of by the court. The controversial issue is whether the benefit of this provision

continues even after the dissolution of the house. There have been instances where the

members taking advantage of this provision contested the subsequent election inspite

of the faction by the court during the tenure of the house. the Supreme Court

considered the unethical aspect also in Prabhakaran case. The court considered the

structural position of S.8(4) and justifications for its retention. It held that

“[S]ubsection 4 would cease to apply no sooner the house is dissolved or the person

has ceased to be a member of that house.”76 Thus, it is another effort of the Court to

strictly check the criminalization of politics.

The entry of criminals in election politics must be restricted at any cost. If it is

not checked it, will erode the system totally. The death of talented persons in politics

may collapse the country internally as well externally. A number of commissions and

committees such as, the Law Commission of India, Election commission, and Vohra
75
The Court also overruled Mannilal vs Parmai Lal, (1970) 2 SCC 462.
76
ibid.
Committee etc. have examined the issue of criminalization of politics but the menace

is increasing day by day.

The parliament has taken efforts by amending the laws, such as, IPC and the

RP Act but the exercise has proved futile. The Supreme Court of India has also made

efforts to check the evil but the problem remains unabated. The Court has in

unequivocal terms wants to prevent criminalization of politics. It says, those who

break the law should not be allowed to make the law.

Judiciary vs Legislature

In the immediate aftermath of the Supreme Court judgment of March 13, 2003,

mandating disclosure of candidate details, many questions about the unwarranted

judicial activism were raised. Did the Supreme Court of India overstep its

constitutionally mandated jurisdiction by giving this judgment? It is the SC’s duty to

interpret fundamental rights and review laws and executive actions in the light of those

rights. In this case, the Supreme Court merely declared the citizen’s right to know

about the candidates as fundamental right, and held the law which abridged such a

right unconstitutional and void. Clearly, the Court acted within its jurisdiction.

The SC has, time and again, drawn the boundaries of judicial review. The

Court often has cautioned against interference in policy matters. For instance in an

earlier judgment the Court refused to hold explanation 1 under Section 77 of the RP

Act, 1951, unconstitutional. This provision of law states that all election expenditure

for the purpose of expenditure ceiling imposed by law! Though this exemption clearly

makes a mockery of law, the Court refrained from interfering on the ground that as

long as thee constitution is not violated,” We cannot negate a law on the ground that
we do not approve of the policy which underlines it”. 77 In respect of disclosures, the

law sought to abridge the fundamental right of citizens to know about candidates, and

therefore, the Court held the law until and void.

True, there were earlier decisions of the Court through which it may have

encroached on the legislative or executive jurisdiction. For instance, the Court

decisions to the effect that only SC will decide on the appointments to higher judiciary

are highly questionable. In no functioning democracy does the judiciary appoint itself.

In several countries, there are institutional mechanism to prevent arbitrary

appointments. In the US, all such appointments should be approved by the Senate, and

in certain States, the subordinate judges are even elected directly by the people.

Similarly, in their anxiety to promote what they considered to be sound

policies, courts sometimes tended to make policies. For instance, the efforts to

prescribe fee structure in private educational institutions, the direction to close down

all industries en masse in a locality, and the decision to impose a certain fuel limits for

vehicles are all highly questionable and contentious. By such decisions, the judiciary

became vulnerable to accusations of usurpation of legislative and executive authority.

The executive and legislature lacked the moral authority and courage to counter

such tendencies, because their credibility in the public eye was seriously eroded.

Certainly there is a case for corrective action to redress such imbalances. For instance

many jurists themselves have advocated a National Judicial Commission to advise on

appointment and removal of judges of higher courts.

77
Nallathampy Terah vs Union of India, 1985.
 In the early years of the American republic, there were instances of judicial

encroachment into executive sphere. Thomas Jefferson rejected such excesses, and

correctly held that while on matters of adjudication, interpreting the Constitution and

upholding the fundamental rights, the Court’s authority was final, on purely executive

matters and policies, the President’s decisions were final. Such a stand requires clarity,

credibility and moral courage.

Unfortunately, several parties and politicians had used the wrong case to attack

the SC. By all means, we hold restore the Constitutional balance among the three

organs of state, and ensure effective checks and balances. but we cannot violate the

citizen’s fundamental rights in the process. The Parliament, the government and the

Courts are meant for the service of the citizens, and people are the ultimate sovereigns

in a democracy. No amount of sophistry, obfuscation, and defense of the indefensible

will convince people otherwise. Another important that we need to answer is, whether

the Supreme Court judgment mandating disclosure of candidate details is unique.

From Political Party System to System of Political Criminalization

But, man as selfish by nature inclined towards competition to have power,

Gradually it led to cut throat competition amongst vested interests in power struggle.

This turned existing political system into a hotbed which gave rise to political rivalry.

To achieve their goal in this power struggle the politicians indulged in various criminal

activities.78 The criminals help politicians in various ways. As a candidate, they win

the seat. The intimidation of voters, proxy voting, booth capturing are the devices

which are carried on by them. The use of money or muscle power and the totally

78
www.researchpublish.com/download-php/judiciary, last visited 2nd May 2016

215
unacceptable practices offend the very foundations of our socio-economic order. 79

While highlighting the derailment of democratic polity train, Rao observed that

‘hundreds of criminal groups with an average strength of 500 each, some of them on

bail, lakhs of licensed and equally daunting unlicensed and indigenous weapons apart

from vast quantities of ammunition and bombs constitute an integral part of the

election-scenario in states like UP and Bihar in particular and others in general. Killing

of party workers and candidates has become common place making it look like our

internal threats to democracy are far more deadly than external’. In the past, though

criminals usually worked behind the scene but now apart from extending indirect help

contest the elections and also become ministers. The Supreme Court of India observed

that booth capturing wholly negates the election process and subverts the democratic

set up which is the basic feature of our constitution. 80 In our country during the post

independent era, elections have eroded democratic polity showing laxity in the matter

of vandalizing, rioting, booth capturing, and political killing. Thus our political system

has been facing with these serious challenges and threats since 1960s. The country is

under the grip of evils like social strife, violence, role of mafia, money and muscle

over the election as well whole system. These evils disseminated widespread

corruption and criminalization in Indian politics. Criminalization of politics does more

than just subvert ethics in governance, it hits at the root of public engagement with the

system. Not only is this trend highly demoralizing for the general public, it reduces

their trust in the system and forces them into apathy and disillusionment.81

79
The Indian Jouranl of Politics, volume 28, issue 3-4, p.76.
80
Sasangoudda vs S. B, Amarbhed
81
Jan Melissen, New Public Diplomacy, Palgrave Macmillan, 2005, New York, p.27.

216
Judicial Intervention: Justifications

When the executive has lost the will to govern the country as per the spirit of the

constitutional law and the legislature was in disarray, it was incumbent on thee

judiciary to play the role in appositive direction to defend Indian democracy. Though

the parliament is supreme authority to frame laws, but judicial activism came to the

fore in this peculiar Indian political context because of the political criminalization,

administrative apathy, media inefficiency and public innocence. In India, in most of

the cases of so-called activism, judiciary has tried to only uphold the principle and

objectives of the constitution which have been stated either explicitly or implicitly.

And, it happened when the executive and legislature, for one reason or another, have

been unable or unwilling to perform their duties honestly and ethically. What it has

does is to amplify the scope of the fundamental rights or to elevate some of the

directive principles of the constitution to the level of the fundamental rights or to

elevate some of the directive principles of the constitution to the level of the

fundamental rights. These were what the founding fathers had envisaged and which

have become in the contemporary world indisputable rights of the citizen like the right

to work, the right to education, right to health and healthcare, and environmental and

human rights. In this respect the device of public interest litigation could be described

as a major judicial innovation in the Indian judicial system. Public interest litigation

has extended the scope of the judiciary to an array of issues which remained hitherto

beyond the reach of the citizen.

Provisions in the Constitution, Indian Penal Code, 1860 and Representation of

People’s Act 1951

Criminalization in Indian politics is closely related to the legislators, though

other subsidiary causes are there. Therefore some provisions have been enshrined in

the constitution to prevent legislators having criminal background from taking entry

into the legislatures. Both in Article 102(1)(e)82 and 191(1)(e) it is mentioned that “if

he is so disqualified by or under any law made by parliament” Chapter IX A of IPC

deals with offences relating to elections. It comprises of nine sections. It defines and

provides punishment for offences, such as bribery, undue influence and impersonation

at elections etc. sec. 171 G provides the punishment of fine for false statement in

connection with elections and for illegal payment in connection with an election. Sec

171 H provides the punishment of fine upto Rs. 500. According to Sec 171 E, if there

is failure to keep election accounts, the offender shall be punished with fine not

exceeding Rs.500. Thus, in India Penal Code, provisions have been made to check

election evils but nominal punishments have been provided and interest is not taken in

prosecution of election offenders. On the other hand, these provisions have failed to

check criminalization of politics because of a faulty provision i.e. ss.8 (4) of the

People’s Representation Act, 1951.

The People’s Representation Act, 1951 has prescribed many important steps to

check criminalization in Indian politics. Sub-section (3) of Section 8 of this Act

provides that a person convicted of an offence, mentioned in sub section (1)(2) of the

same Act, shall be disqualified from the date of such conviction and shall continue to
82
Art 102 (1) (e) states that “A person shall be disqualified for being chsoen as and for being a memebr
of either house of Parliament if he is so disqualified by or under any law made by parliament”.
be disqualified for a further period of six years since his release. However, sub-section

(4) of section 8 provides that “Notwithstanding anything in Sec.8 sub-section (1), sub-

section (2) or sub-section (3)] a disqualification under either subsection shall not, in

the case of a person who on the date of the conviction is a member of Parliament or the

Legislature of a State, take effect until three months have elapsed from that date or, if

within that period an appeal or application for revision is brought in respect of the

conviction or the sentence, until that appeal or application is disposed of by the court”.

Thus, this sub-section provided the corrupt and tainted politician ample scope to

continue inactive politics both inside and outside of the legislatures. This revamped a

pernicious effect on political sphere and increased criminalization in politics.

Disqualification on conviction for certain offences. (1) A person convicted of

an offence punishable under

(a) section 153A (offence of promoting enmity between different groups on

ground of religion, race, place of birth, residence, language, etc., and doing acts

prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section

171F (offence of undue influence or personation at an election) or sub-section (1) or

sub-section 92) of section 376 or section 376A or section 376B or section 376C or

section 376D (offences relating to rape) or section 498A (offence of cruelty towards a

woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of

section 505 (offence of making statement creating or promoting enmity, hatred or ill-

will between classes or offence relating to such statement in any place of worship or in

any assembly engaged in the performance of religious worship or religious

ceremonies) of the Indian Penal Code (45 of 1860); or

 (b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for

punishment for the preaching and practice of “untouchability”, and for the

enforcement of any disability arising therefrom; or

Sub-section (3) of Section 8 is a residuary provision. A detailed list of the

punishable offences the conviction for which the disqualification operates has been

made in sub-section (1). A contravention of the provisions mentioned in sub-section

92) also results in disqualification. However, a question arises as to the eligibility as

against a person convicted and imprisoned for an offence other than those mentioned

in the two sub-sections. This problem has been solved by sub-section (3) which reads

as hereunder:

(3) A person convicted of any offence and sentenced to imprisonment for not

less than two years other than any offence referred to in sub-section (1) or sub-section

92) shall be disqualified from the date of such conviction and shall continue to be

disqualified for a further period of six years since his release.”

If a person is convicted and sentenced to imprisonment for more than two years

for an offence other than those mentioned in the section, he shall be disqualified from

the date of conviction and shall continue to be disqualified for a further period of six

years.

The duration of disqualification is similar to the duration mentioned for a

sentence of imprisonment under sub-section (1) and a conviction under sub-section

(2). A bare reading of the above mentioned sub-sections suggest that the intention of

the legislature is to keep those convicts away from contesting for or continuing in

political office.
 However, a person sentenced to imprisonment for less than two years, for an

offence other than those mentioned in sub-sections (1) and (2), does into stand

disqualified from contesting for or continuing in political office. While throwing some

much needed light upon the criminalization of politics, K Prabhakaran caseenumerates

the importance section 8(3).83 “The purpose of enacting disqualification under Section

8(3) of the RPA is to prevent criminalization of politics. Those who break the law

should not make the law. Generally speaking, the purpose sought to be achieved by

enacting disqualification on conviction for certain offences is to prevent persons with

criminal background from entering into politics, and the House – a powerful wing of

governance. Persons with criminal background do pollute the process of election as

they do not have many a holds barred and have no reservation from indulging into

criminality to win success at an election. Thus, Section 8 seeks to promote freedom

and fairness at elections, as a also law and order being maintained while the elections

are being held. The provision has to be so meaningfully construed as to effectively

prevent the mischief sought to be prevented.”84

A person convicted under the provisions of Section 8(3) of the Act stands

disqualified for the period mentioned thereof. However, the person so convicted may

move a higher court challenging the conviction. The obvious question which arises is

regarding the validity of disqualification if the appeal is allowed by the higher court

and consequently the judgment of the lower court is reversed. The question was

meticulously answered in the K. Prabhakaran case wherein the petitioner and the

respondent contested for an election to the State Legilative Assembly from the same

83
K Prabhakaran vs P. Jayarajan, C.A. No. 8213/2001.
84
ibid.
constituency. The respondent previously was convicted by a Magistrate court for

several offences. The sentences were to run consecutively and not concurrently.

Consequently the total period of imprisonment was more than two years and the

respondent stood disqualified under the provision of section 8(3). However his

nomination was accepted by the Returning Officer. Post declaration of the result, the

appellate court ordered that the sentences be run concurrently and not consecutively.

The petitioner filed an Election Petition pleading to declare the election of the

respondent as void since the latter was disqualified as on the date of scrutiny of

nomination. The designated Election Judge did not find fault with the R.O.’s decision

to accept the respondent’s nomination.

The designated Election Judge referred to the Honourable Supreme Court’s

finding in Manni Lal v. Parmai Lal.85 In the said case, the court held that in a criminal

case, acquittal in appeal does not take effect merely from the date of the appellate

order setting aside the conviction; it has the effect of retrospectively wiping out the

conviction and the sentence awarded by the lower court. Therefore, a disqualification

resulting out from out of a conviction would be wiped out in case of an acquittal by an

appellate bench. The Honourable Supreme Court, while dealing with the same issue in

the Prabhakaran case took a different view thereby overruling its earlier finding in the

Manni Lal case.

Corruption is a complex multi-faceted social phenomenon with innumerable

manifestations. It takes place as an outcome of deficiencies in the existing public

85
AIR 1971 SC 330.
administration apparatuses and systems as well as cultural, economic, political and

social factors.86

Differences of opinion still exist as to the meaning of the term corruption. This

is primarily because individuals look at corruption from their own vantage points

influenced by surrounding environment. But what is heartening is that in recent years

corruption is viewed from a much broader perspective rather than looking at it from

moral and functional angles only.

The causes of corruption are as varied as the phenomenon itself. Corruption

results from the presence of a number of factors. Typologies have been offered to

make a sense out of so many contributory factors.

There are many forms of corruption. To understand the dynamics of so many

types of corruption attempts have been made to classify different forms of corruption

into broad categories. What transpires from such a categorization is that corruption can

be sponsored by outsiders, resultant of political scandal, institutionalized and

administrative malfeasance.

The cost of corruption has been enormous in terms of a country’s socio-

political and economic advancement. What has been conclusively demonstrated is that

corruption has negative consequences on economic growth, administrative efficiency

and political development.

Checking corruption is a crying need of today’s world. At the same time, it is

understood that total eradication of corruption is not possible. But that does not mean

in any way that corruption cannot be effectively contained. A number of

86
Theobald, 1990: UN, 1990.

223
recommendations have been offered as how to check corruption in a decisive manner.

But what has been realized is that in order to drastically reduce corruption fundamental

changes must be brought about without any delay or hesitation.

India is the largest democracy in the world. Its people are the sovereign with a

republican government of its own. It is a welfare state. The constitution also provides

certain fundamental rights to its citizen by ensuring equality, liberty, fraternity and

justice. To uphold these rights certain safeguard measures have been provided in the

constitution. Of these safeguard measures judiciary is the most prominent. So that

people have every right to elect a government of its own and in return claim to get

good governance.

Political Party system:- To form a good representative form of government

people participated in electoral politics. This brought political party into existence.

Subsequently, for bettering the representative form of government multiparty system

prevailed in India. political parties are indispensable to any democratic system and

play the most crucial role in the electoral process – in setting up candidates and

conducting election campaigns. It is fact that, from beginning India adopted multiparty

system with an anticipation of transparent, dynamic, progressive and effective political

system which is fundamental demand of a democratic state.

Famous contemporary philosopher and activist Naom Chomsky rightfully

points out that “For the powerful, crimes are those that others commit.” Perhaps that’s

why our dear old politicians are unable to spot the black sheep in our flawed structure.

The “Theory of Separation of Power” in literal sense is just a theory in today’s

democracy.87 We have lost the good old days where philosophers and theorists were

viewed vitally.

World renowned jurist Salmond opines that “Moral rules cannot be brought

into existence of altered or done away in its own way. standards of conduct cannot be

endowed with or deprived of moral status by human fiat, though the day to day use of

such concepts as enactment and repeal indicates that the same is not true of law. The

idea of moral legislature with competence to make and change morals, as legal

enactments makes and change law, is repugnant to the whole notion of morality.” A lot

might and moral fiber is required to lead a principled life without rules and regulations

guarding our every step. When most of our politicians have dirtied their hands as

criminals, the issue now is way beyond “means and ends” and “is and ought”. The

burning question now is to ask ourselves – What will we do about this?

We have witnessed the rise of criminals as politicians in our very own beloved

backyard called democracy since last few decades or so. It is indeed high time that we

stand up against politicians with criminal background and take a stand to weed them

out of the system. Apart from tough legislative measures, we the people have to play

an active role in electing our leaders and should create awareness about the importance

of public participation to achieve criminal free political system.

Agreed that society being ideal is too idealistic in theory as well as in practice

but in a free world all possibilities should be explored. Now it is up to the countrymen

to bring in some change to cleanse the existing system and build a new one in which

faith and integrity plays a key role in laying foundation to the new corruption and

87
M.J.C. Vile, Constitutionalisation and the Separation of Power, Liberty Fund Publisher, 1998.
criminal free political system so that we can relive the true definition of democracy

“by the people, for the people and of the people”.

APART from terrorism, the most serious problem being faced by the Indian

democracy is criminalization of politics. At times, the concern has been expressed

against this obnoxious cancerous growth88 proving lethal to electoral politics in the

country. Purity and sanctity of electoral process, sin qua non for a sound system of

governance appears to have become a forgotten thing in view of the entry of a large

number of criminals in the supreme legislative bodies at central and state level. Sri

G.V.C. Krishnamurthy, the election commissioner (as he then was) has pointed out

that almost forty members facing criminal charges were the members of the Eleventh

Lok Sabha and seven hundred members of similar background were in the state

legislatures.89

Even the political parties out of the glamour of political power and consequent

benefits do not hesitate in giving tickets to the criminals and do not object to their use

in winning the elections. Thus, politicization of criminals needs to be checked by all

means at disposal. This paper examines criminalization of politics and convictional

disqualifications to restrict the entry of criminals in the elective system.

Over the past two decades, the Indian the Indian political area saw increasing

presence of criminal elements in its midst. From time to time, the Election

Commission wrote to the Government of India (GOI) urging it to make necessary

changes to the Representation of the People Act, to make it difficult for persons with

criminal record to seek elective office, but the governments of the day chose not to act.
88
A mere reference to Vohra Committee Report would be sufficient in this connection.
89
See Rabi Roy, Electoral Reforms: Need of the Hours, 13 Politics India, 7 at 8 (1998).
 In the absence of a legal frame work to prevent criminalization of politics,

many citizen groups, newspapers and magazines have been conducting informal

surveys over the years.

The entry of criminals in election politics must be restricted at any cost. If it is

not checked it will erode the system totally. The death of talented persons in politics

may collapse the country internally as well externally. A number of commissions and

committees such as the Law Commission of India, Election commission, and Vohra

Committee etc. have examined the issue of criminalization of politics but the menace

is increasing day by day.

The parliament has taken efforts by amending the laws such as IPC and the RP

Act but the exercise has proved futile. The Supreme Court of India has also made

efforts to check the evil but the problem remains unabated. The Court has in

unequivocal terms wants to prevent criminalization of politics. It says those who break

the law should not be allowed to make the law.

Actually the roots of the problem lie in the political system of the country.

There is lack of political will to combat the problem. The political parties also do not

believe in higher ethical norms. They should united make efforts to prevent

criminalization of politics.

The IPC and the RP Act both should be suitably amended. For every electoral

offence, the minimum punishment should not be less than two years. In the RP Act

care should be taken to ensure that even suspects should not make entry into politics.

The candidate should be asked to furnish detailed information in respect of

civil and criminal matters against him on affidavit and if the information furnished
make out a criminal case he should be disqualified irrespective of the fact that he was

not prosecuted and/or punished by a court of law.

There is need of setting up special courts for trying the cases of criminalization

of politics. Keeping in view the ever deteriorating standards of politics, it would be

more desirable to try all cases of politicians by special courts. It will help maintain

sanctity and purity of elections.