Representation of People’s Act

Criminalization of Politics

Introduction

According to ADR data for the 17^th Lok Sabha, 43% of the elected members of parliament have criminal cases pending against them pointing to the great danger of criminalization of Indian politics.

Criminalization occurs in 2 ways:

Criminals themselves become candidates and stand in election to gain political power
Political parties or leaders form nexus with criminals

Criminals themselves becoming candidates

Reasons

Financial Muscle: Criminal candidates often possess the financial muscle that eases the burden on party’s own coffers. Hence parties are incentivized to field them
Muscle Power: Parties feel these candidates would be able to use their muscle power either through threatening or booth capture to mobilize the requisite majority in an election. Voters often falsely perceive these candidates to be enablers of fulfilment of promises and securing interests of their constituency
Protection from Persecution: As the chances of re-election of an incumbent have gone down, criminals are better incentivized to directly contest and gain political power as they fear they may no longer be assured of protection from persecution

Legal Nitty Grities

Section 8 of the RPA has stated that criminals who are convicted for offences for more than 2 years be banned from standing for elections for six years after their release
SC has struck down section 8(4) of RPA which enables convicted law makers to hold onto their seats provided they file an appeal within 3 months
If an MP or MLA is disqualified and later acquitted? The appellate courts have the power to suspend the disqualification and proceed with the trial but such power should be used sparingly
Political Parties have opposed that unless appeals by convicts in higher courts are settled, they must be allowed to stand for elections.

SC’s interpretations Over the Years

Declaration on Affidavit: In 2002, the Supreme Court provided that candidates shall declare details of criminal cases pending against them on an affidavit to returning officer. This can help educate electorate and elicit informed choice, at the same time, it can dissuade candidates from fielding tainted candidates
Lily Thomas Case (2013): SC held that legislators would incur immediate disqualification if convicted effectively eliminating the protection of 90 days provided in Section8(4) for appealing the conviction
Public India Foundations Case (2014): SC ruled that criminal trials particularly those involving heinous offences and corruption involving elected representatives should be completed in a year
PIL seeking life ban on convicts (2017): SC asks the centre to set up a mechanism for speed trial of lawmaker pointing out that it takes years to complete trial of politicians by which time they would have served as law makers or ministers several times over.
- It asked the centre to set up special courts that can exclusively hear criminal cases involving ‘political persons’.
- These courts would be under a central scheme hence it would not depend on availability of funds of states and would be of the nature of fast track courts
- EC has stated that it favours a life ban on convicts opining that it would make elections freer and fairer promoting a healthy democracy. It has called to make bribery a cognizable offence, ban advertisements 48 hours before election and on paid news

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Suggested Reforms for dealing with Accused under Trial

Fast Track Courts should decide cases of tainted legislators expeditiously and quickly to retain purity of legislature and maintain citizen’s faith in democratic institutions
- The Centre would establish 12 courts to deal exclusively with criminal cases involving MPs and MLAs

Eliminating the Need for Criminal Candidates from Political party perspective

Greater Transparency in Funding:
- State Funding to eliminate need for political parties to rely on money power of criminal candidates
- Empower EC with power of Audit
- Political parties to be brought under RTI

Preventing Convicted Candidates from Contesting in Elections

Strengthen NOTA: Gradually strengthen effectiveness of NOTA to include ‘right to reject’. This would dissuade political parties from providing tickets to tainted candidates
Life Ban: SC is currently contemplating a PIL that asks to increase the current ban on convicts from contesting elections to life ban. If such a ban came in force, it would vastly improve purity of legislatures
Political Parties should themselves refrain from giving tickets to tainted candidates
Amend RPA to debar candidates against whom cases of heinous nature are pending from contesting elections

Nexus between Political Parties and Criminals

Voters are compelled by undue force and threats from criminals to vote for a particular candidate or party. It hence effectively strikes at the core of democratic nature of electoral institutions taking away the discretion of a voter and replacing it with compulsion
Instances of booth capture or destruction of EVMs and polling stations are common in unstable regions of the country. Political parties in return protect the perpetrators from persecution.

Reforms Suggested

Trustworthiness in Elections

EVMs have been brought under great scrutiny in recent past with its authenticity being questioned by various political parties and media outlets. In such a circumstance, EC is planning to introduce Voter Verified Paper Audit Trial (VVPAT).

VVPAT

It refers to a piece of paper on which the voter after casting his vote would be able to see the symbol and name of the candidate he had voted for. This enhances transparency and provides an opportunity for the voter himself to verify that his vote has been accorded to the chosen candidate. VVPATs would enable EC to regain the trust of voters in EVMs and ensure that the spirit of electoral democracy remains intact

Call for Hybrid System

Issues with current System

Lack of Representativeness: The FPTP system does not enable seat translation in proportion to vote share. Often, a minority democracy is cultivated by the FPTP where candidates or parties with even less than 50% of vote share wins
- A candidate with 30% votes can get elected in multi-party system despite majority not favouring him. Thus the will of the 70% is not represented in the legislature/ executive
Not fit for India’s plurality: India’s rich cultural diversity needs a better representative system than the first past the post. This can ensure minority electoral voices are also heard
Exclusion of Smaller Parties: The FPTP system can exclude representation from smaller parties due to its favouring of majority and does not extend due seats or relevance to them on basis of vote share

How Hybrid System can help?

Better Representation: The system of proportional representation used can translate votes into seats faithfully. This provides a better reflection the will of the people
- If X wins 40%, Y 30% and Z 30%, each would get number of seats accordingly. Thus it is able to exactly represent the grass root level mandate
Minority Voice: The proportional representation system can facilitate access to minority representation. In India’s multi-cultural democracy, this averts the danger of democracy from becoming a tyranny of the majority.
Representation for Smaller Parties: Proportional representation encourages smaller parties to contest and gain seats. It can thus augur well for India’s multi-party system and federal democratic polity encouraging amalgamation of diverse views and opinions

Issues with Proportional Representation

Accountability: Candidates are not directly elected in proportional system and thus the accountability of performance of one elected candidate to an electorate is lost.
Complexity: While FPTP is most simple with the candidate with voters asked to choose one, the proportional representation system asks voters to arrange candidates in order of choice
Territorial Representation: Party based representation threatens to undermine territorial specialization of MPs and MLAs that is vital to need based development and disaster management
Efficiency: Proportional representation would facilitate greater political representation across political parties leading to coalition governments. This would limit efficiency and decisiveness of government
No familiarity

Hybrid System: The hybrid system is a harmonious mixing of both FPTP and Proportional representation. The Law Commission has recommended for the hybrid system through 25% seats reserved using proportional representation.

Hybrid system can offer the accountability, simplicity and efficiency of FPTP while also partially bettering on the ground representativeness, minority aspirations and voice of the unheard smaller parties.

Effectiveness of NOTA

NOTA is a choice provided to voters to refrain from choosing any of the candidates if he or she feels none of them are fit for the post. It was introduced by the SC in the PUCL vs Union of India Case.

Issues with NOTA

No Right to Reject: Even in scenarios where NOTA polls the highest votes still the candidate with the majority votes would qualify even if the votes acquired by him are less than that polled by NOTA
Polling in Reservation Constituencies: Election trends since introduction of NOTA in reserved constituencies point towards highest percentage of NOTA in the country. This may be indicative of the displeasure of the so called upper castes with an individual from scheduled caste or tribe community representing them

Totalizer Machine

The totalizer machine would aggregate votes from various poll booths before counting. This would offer anonymity to voters and protect them from harassment and victimization pre and post elections.

Electronically Transmitted Postal Ballot System: The ETBS system introduced first in the Chengannur by elections in Kerala can help ease voting for those in service. This can ensure quick and transparent method of voting for those far away