INTRODUCTION OF POLITICS AND ELECTION

As per my own views "In India, one cannot escape from the influence of three things; first Politics, second Cinema, and third Cricket."

Election is something on which the whole politics of the nation moves around. The real definition of politics is not that which has been these days. The kind of politics, nowadays, people are doing is Fake. Howsoever, the concept of politics is extremely old. For Aristotle, politics was the "master science" on which all branches of human activity depended. Politics is no less central to an understanding of our own society and the world around us. For today's college student, the systematic study of politics--or political science--offers an opportunity to explore how and why public decisions are made on issues ranging from health care to tax policy to human rights, and the environment.

"It is … constitutional to take … from the oligarchy that offices are to be elected, and from democracy that this is not to be on a property-qualification. This then is the mode of the mixture; and the mark of a good mixture of democracy and oligarchy is when it is possible to speak of the same constitution as a democracy and as an oligarchy." - Aristotle, Politics, Book 4, 1294b.10–18

He is called the father of political science largely because of his work entitled Politics. This treatise is divided into eight books and deals with subjects such as citizenship, democracy, oligarchy, and the ideal state. Aristotle along with Socrates and Plato are the fathers of Western Philosophy.

Plato believes that conflicting interests of different parts of society can be harmonized. The best, rational and righteous, political order, which he proposes, leads to a harmonious unity of society and allows each of its parts to flourish, but not at the expense of others. Kautilya described three types of political systems namely rule making, rule application, and rule adjudication, and has been recognized for his contributions to bringing diplomacy.

Politics is something which inevitable for the functioning of the governance of the nation or a state. Without politics, this world can't exist, but the way we have made politics is not that which it exactly is.

ELECTION

Election is that path through which the outcome of politics comes. Democracy, Politics, and Elections all the three terms are closely associated with each other and it can't be segregated. Elections lie at the very heart of democracy. It is through elections that people in a democracy participate in public affairs and express their will. It is again through elections that power changes hands in a peaceful and orderly manner in a democracy and the authority of government gets clothed with legitimacy.

Elections, thus not only sustain democracy but enliven it as well. Holding a free and fair election is, therefore, a sine qua non of democracy. Across the world different forms of government is present, somewhere it is acquired Monarchial form, somewhere presidential, somewhere Parliamentary democracy, and somewhere dictatorial. India is both the largest and one of the most populous democracies in the world. This apart, in comparison to most of the developed democracies of the world, problems of illiteracy, poverty, etc. still continue in India as is the case with most of the developing countries.

Elections have thus become integral to India's democracy as elsewhere in other successful liberal democracies, the world over. After India attained Independence in August 1947, there was a need to hold General Elections to elect a truly representative Government on the basis of universal adult suffrage. Article 324, which provides for the setting up of the Election Commission as an independent constitutional authority, was therefore brought into force from November 26th, 1949, whereas, most of the other provisions were made effective from January 26th, 1950 (when the Constitution of India became effective). Election Commission was formally constituted on January 25th, 1950, a day before India became a Sovereign Democratic Republic. The First Chief Election Commissioner, Shri Sukumar Sen, was appointed on March 21st, 1950. The Chief Election Commissioner and two Election Commissioners are given the same salary and allowances as of a Judge of the Supreme Court. All the three Commissioners have equal powers in decision making and in case of any difference of opinion on any issue, the decision is taken by the majority. The term of the office of CEC and ECs is six years or till the age of 65, whichever is earlier. Electoral Rolls for constituencies were published in all States by November 15th, 1951. The total number of voters (excluding J&K) was 17,32,13,635 as against the total population of India (excluding J&K), 35,66,91,760 according to 1951 census,. The first General Elections to the Lok Sabha and Vidhan Sabhas were held between October, 1951 and March, 1952. The first Lok Sabha consisting of 497 members was constituted on April 2nd, 1952. The first Rajya Sabha consisting of 216 members was constituted on April 3rd, 1952. For the first and second General Elections in 1951-52, and 1957, the Election Commission adopted the ‘Balloting System’ of voting. From the 3rd General Elections in 1962 onwards, the Commission switched over to the ‘marking system’ of voting. The Electronic Voting Machines (EVMs) were used for the first time in part of Parur Assembly Constituency in Kerala in 1982, on an experimental basis. Later, the extensive use of EVMs started in 1998. The EVMs were used at all polling stations in the country in the 14th General Elections to the Lok Sabha in 2004 for the first time. Since then all elections to Lok Sabha and Legislative Assemblies have been held using EVMs. The elections held in India in 2019 include the general election, by-elections to the Lok Sabha, elections to seven state legislative assemblies and numerous other by-elections to state legislative assemblies, councils and local bodies. In addition, the BJP-led National Democratic Alliance (NDA) and won 353 seats. The Indian National Congress won 52 seats, failing to get 10% of the seats needed to claim the post of Leader of Opposition, Congress-led United Progressive Alliance and won 91 seats. In our country, a multiparty system prevailing to contest the election.

“A Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.” - Dr. Rajendra Prasad

CRIMINALISATION OF POLITICS

On the rapid rise of criminalisation in politics, the Supreme Court on reproduced the words of the freedom fighter and last Governor-General of India, C. Rajagopalachari, to show how Independent India’s founding fathers apprehended the slow slide of honesty and integrity in politics. Rajaji had written in his prison diary that “Elections and their corruption, injustice, tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us...”

The legislators who are in legislatures are elected by the people of India and they act as representatives of the citizen of their own Constituency. It means the representations should be raising the issues of people. However, if the people who have been despatched in the house of legislation are corrupt or criminal then it is almost sure that the policies which will be formed, will not lift the economy of India and will the resolve the issue of the people. Thus, in this way, the core principle of democracy will not be served.

The criminalization of politics means the participation of criminals in politics. This means that persons with criminal backgrounds contest in the election and get selected as a member of parliament or state legislature. It is said that politics had reached a stage where the lawmakers became the lawbreakers. In a democratic country like India, the increasing nexus between criminals and politics threatens the survival of true democracy. It is now becoming a trend, people with criminal backgrounds have more influence in politics than people without criminal backgrounds.

The increasing percentage of members of parliament who have a criminal background:

2004 - 24%
2009 - 30%
2014 - 34%
2019 - 43%

Nearly 50% of MPs in the new Lok Sabha have criminal records. The criminalisation of politics is one of the primary concerns in India as many politicians facing charges of murder, corruption, abduction, and rape continue to be legislators.

Around 1/3rd of the members of the current parliament have criminal cases filed against them. The recent report on ‘Analysis of Criminal, Financial, and Other background details of Union Council of Ministers, Post Cabinet Expansion on July 7, 2021″ by National Election Watch (NEW) and Association for democratic reforms (ADR) analyses the latest affidavits by 78 ministers including Hon’ble Prime Minister from 2019 Lok Sabha, present Rajya Sabha, and Assembly elections. The criminal background in the recent cabinet is summarized here as follows:

Out of 78 ministers, 33 (42%) ministers have declared criminal cases against them.
24 (31%) ministers have reported serious criminal cases against them, such as rape, murder, robbery, etc.
Four ministers have cases against them related to Section 307 of the Indian Penal Code, 1860.
Five ministers have cases against them related to promoting communal disharmony.
Five ministers have declared cases of electoral violations against them.

Furthermore, ADR also stated in his report that the proportion of Union ministers who have declared criminal cases against them has risen by 3%. Data suggests that voters don’t mind electing candidates facing criminal cases. The increasing number of members with criminal records in parliament threatens the survival of any true democracy.

Legal aspects/Constitutional provisions on disqualification of criminal candidates:

The law commission in its 179th report recommended an amendment to the Representation of people act 1951. It suggested that people with criminal backgrounds should be disqualified for five years or until acquittal. It is also recommended that the person who wants to contest the election must furnish details regarding any pending case, with the copy of the FIR/complaint, and also furnish details of all assets. But no action was taken on the recommendation by the government due to a lack of consensus amongst the political parties.

In a decision of the Supreme court in the Association of democratic reforms, the representation of people Act 1951 was amended by inserting section 33-A which requires a candidate to furnish information on whether he is accused of any offense with imprisonment of two years or any pending cases

in which charges have been framed and whether he has been convicted for one year or more.

The representation of people Act (RP Act) 1951 mentions the criteria to disqualify a person to contest the election:

Section 8 of the Act says that a person punished with a jail term of more than two years cannot contest an election for six years after the jail term has ended.

The law does not bar any person who has criminal cases pending against him. Therefore, the disqualification of candidates with criminal backgrounds depends on their conviction

Reasons why criminalization of politics still exists in India:

Corruption:

In every election political parties put up candidates with a criminal background.
The evident link between criminality and the probability of winning is further reinforced when the winnability of a candidate is looked into. A candidate facing criminal charges is twice as likely to win as a clean candidate.

Vote Bank:

The political parties and independent candidates have astronomical expenditures for vote buying and other illegitimate purposes through these criminals.

Denial of Justice and Rule of Law:

Toothless laws against convicted criminals standing for elections further encourage this process. Under current law, only people who have been convicted at least on two counts be debarred from becoming candidates. This leaves the field open for charge sheeted criminals, many of whom are habitual offenders or history-sheeters.
Constitution does not specify what disqualifies an individual from contesting in an election to a legislature.
It is the Representation of People Act which specifies what can disqualify an individual from contesting an election. The law does not bar individuals who have criminal cases pending against them from contesting elections

Lack of governance:

The root of the problem lies in the country’s poor governance capacity.

Scarcity of state capacity:

The scarcity of state capacity is the reason for the public preferring ‘strongmen’ who can employ the required pulls and triggers to get things done.
Criminality, far from deterring voters, encourages them because it signals that the candidate is capable of fulfilling his promises and securing the interests of the constituency.
No political party is free of this problem. The use of muscle power along with money power is a weapon used by all political parties to maximize electoral gains.
With cases dragging in courts for years, a disqualification based on conviction becomes ineffective. Low conviction rates in such cases compound the problem; voters don’t mind electing candidates facing criminal cases.
Voter behavior then emboldens political parties to give tickets to such candidates who can win an election on their ticket etc.

WHAT ARE THE MEASURES TAKEN?

The Supreme Court and Election Commission of India (ECI) have taken some commendable measures to reform the electoral process as follows.

ECI’s Reforms:

ECI has achieved substantial success in controlling the role of muscle power via measures like the effective implementation of the model code of conduct and also established the Expense Monitoring Cell.
Mandatory declaration of assets and existing criminal charges in self-sworn affidavits to the ECI prior to elections has brought in some transparency.

The Supreme Court’s verdicts:

SC in a 2002 verdict declared that every candidate contesting an election to Parliament, State Legislatures or Municipal Corporation has to declare the following along with the application for candidature.

Criminal records
Financial records
Educational qualifications

If the candidate fails to file any of the above three declarations, the Returning Officer will have the right to reject his nomination papers. SC ruled that all three declarations will have to be truthful.

SC in (Lily Thomas Vs Union of India 2013) declared that upon conviction, charge-sheeted MPs and MLAs would be disqualified with immediate effect from holding membership of the house, without being given 3 months to appeal.
SC in 2014 accepted the Law Commission recommendations and passed an order directing that trials against sitting MPs and MLAs should be concluded within a year of charges being framed and conducted on a day-to-day basis.

Some other attempts by the judiciary:

Prohibiting those in jail from contesting elections, directing the EC to bring the issue of election-related freebies under the ambit of the Code of Conduct, and the Allahabad High Court banning caste, and religion-based political rallies.

Recent SC verdict: The judgment was given over the much-awaited pronouncement on the petitions asking it to prohibit politicians facing the heinous criminal charges of rape, murder, and kidnapping from contesting elections.

Centre’s measures:

In 2017, the Union government started a scheme to establish 12 special courts for a year to fast-track the trial of criminal cases against 1,581 MPs and MLAs.

How effective were those measures?

Debarring of politicians has no effect since rates of conviction are too low and trials themselves are subject to long delays as showcased by a recent Law Commission report.
Many politicians are filing false affidavits about their annual income, and wealth details.
About 90% of cases transferred to the special courts set up under the Centre’s scheme are pending as of now.

What are the key features of the recent SC verdict on Criminal Politics?

Political Parties:

SC’s Observation – The rapid criminalization of politics cannot be solved through the mere disqualification of criminal legislators. Cleaning politics from criminal elements starts only by means of purifying political parties themselves. Since political parties are the major institution of Indian democracy, they play an important role in the interface between private citizens and the government. They act as a medium through which interests and problems of the people are showcased in Parliament.
SC’s verdict – The Supreme Court ordered the political parties to publish the pending criminal cases of their candidates online.

Parliament:

It asked the Parliament to create a strong law in order to cleanse political parties of leaders facing trials for serious crimes.
Such a law should make it mandatory for political parties to remove leaders accused of “heinous and grievous” crimes.
Parties must reject tickets to criminal elements in both parliamentary and Assembly polls.
The Bench also made it clear that the court cannot make law for Parliament by providing disqualification to prohibit such candidates from contesting elections.

Candidates:

SC declared that the candidates should disclose their criminal cases against them to the Election Commission in BLOCK LETTERS as well as to their respective political parties.
The parties, in turn, should publish the full details of their candidate on their websites for public view.

What are the concerns with the judgment?

The SC has passed the burden to the ECI, although the ECI has been asking for the apex court’s aid for the past two decades.
Parliament is required to make a law on the matter as per Article 101 (1) of the constitution, however, Parliament regardless of who is in power has always been reluctant to legislate on the issue.
The bench pronounced that it is not in a position to enable the disqualification of candidates who face criminal charges thus withdrawing from its responsibility to solve the issue.
Voters do not generally read the websites of political parties.
The recommendation regarding the publicity campaigns about the criminal background of candidates by political parties sounds unreasonable.
The definition of heinous crimes may change as per times and societal conditions.

What more could be done?

A law to prohibit candidates who are charged with heinous crimes will need a broad consensus across the party lines.
More fast-track courts to try the cases dealing with serious charges against the candidates.
State funding of elections:
To reduce money power,
To create a level playing field,
To enable public-spirited people to contest elections thereby ensuring equality of opportunities,
To break the political-corporate nexus thereby ending rent-seeking and crony capitalism.
To change the election’s focus towards people’s problems rather than on raising funds through illegitimate means, i.e., focus on development politics.
Stricter implementation of anti-corruption laws.
Transparency and audit mechanisms.
Representation of Peoples Act (RPA) needs to be amended and there should be stricter actions against serious offenders.
Election Commission should be given more power to deal with corruption cases.
Inner party democracy needs to be improved.

WAY FORWARD TO AVOID CRIMINALISATION

Political parties will have to be encouraged to have stronger inner party democracy to attract this new set of leaders to join the party. And finally, our judicial system will have to be overhauled drastically to ensure that justice is dispensed swiftly in all cases.
The Election Commission of India (ECI) should have the power to audit the financial accounts of political parties, or political parties’ finances should be brought under the right to information (RTI) law. The Election Commission must take adequate measures to break the nexus between criminals and politicians.
The forms prescribed by the Election Commission for candidates disclosing their convictions, cases pending in courts, and so on in their nomination papers are a step in the right direction if it is applied properly.
Broader governance will have to improve for voters to reduce the reliance on criminal politicians.
Fast-track courts are necessary because politicians are able to delay the judicial process and serve for decades before prosecution
Law panel report bats for using the time of the framing of charges to initiate disqualification as an appropriate measure to curb the criminalization of politics.
Political parties should themselves refuse tickets to the tainted.
The RPA Act should be amended to debar persons against whom cases of a heinous nature are pending from contesting elections.
Bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.

Dr.B.R. Ambedkar said,
“A Constitution can provide only the organs of State... The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?”

MECHANISM OF ELECTORAL BONDS

Electoral bond is an instrument through which one can donate money to any political party in India. Such bonds, which are sold in multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore, can be bought from authorised branches of the State Bank of India. As such, a donor is required to pay the amount — say Rs 10 lakh — via a cheque or a digital mechanism (cash is not allowed) to the authorised SBI branch. The donor can then give this bond (just one, if the denomination chosen is Rs 10 lakh, or 10, if the denomination is Rs 1 lakh) to the party or parties of their choice. The bonds are available for purchase by any citizen of India for a period of ten days each in the months of January, April, July, and October as may be specified by the Central Government.

A person being an individual can buy bonds, either singly or jointly with other individuals. The political parties can choose to encash such bonds within 15 days of receiving them and fund their electoral expenses. On the face of it, the process ensures that the name of the donor remains anonymous.

These bonds are only redeemable in the designated account of a registered political party. The central idea behind the electoral bonds scheme was to bring about transparency in electoral funding in India. The government had described the scheme as an “electoral reform” in a country moving towards a “cashless-digital economy”.

In the Union Budget speech on February 1, 2017, then Finance Minister Arun Jaitley stated: “Even 70 years after Independence, the country has not been able to evolve a transparent method of funding political parties which is vital to the system of free and fair elections…Political parties continue to receive most of their funds through anonymous donations which are shown in cash. An effort, therefore, requires to be made to cleanse the system of political funding in India.”

In response, he proposed two main changes. One, he reduced the amount of money that a political party could accept in cash from anonymous sources — from Rs 20,000 to Rs 2,000. Two, he announced the introduction of electoral bonds as a way to make such funding more transparent. This is way of the political parties to get donations and such a recent record of that is in this way.

The 20th such window — between April 1 and April 10 — is currently open. According to a written reply in Rajya Sabha last month, Minister of State for Finance Pankaj Chaudhary provided the break-up of the yearly sale of electoral bonds: Rs 1056.73 crore in 2018; Rs 5071.99 crore in 2019; Rs 363.96 crore in 2020; Rs 1502.29 crore in 2021; and Rs 1213.26 crore in 2022. In other words, in 19 tranches since 2018 when they were effectively available, bonds worth Rs 9208.23 crore have been sold. Of these, bonds worth Rs 9187.55 crore have been encashed by political parties. Here, it can be easily noticed how much in abundance money is being donated to the political parties.

PROCESS OF PROCURING AND DONATING ELECTORAL BONDS

This phenomenon can be understood through the following steps:

Step 1. If someone is reluctant to give donations to any political party then he'll have to procure the electoral bond/bonds from the fixed bank which is SBI.

Step 2. The person will have to go to the bank in the first 10 days of the determined months which are

Step 3. Now, the person will ask to procure an electoral bond in the multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore. The banker will give him a form in which the person will fill his all bank account details.

Step 4. In this step, the banker will accept the form and deduct the money from the bank account of the donor and in lieu of that, he will give him a piece of paper.

Step 5. The money donator will go or send the required documentation to the office of the political party to encash money from the account to the donator to the bank account of the political party.

Step 6. It is the final step, in this the political party will have to encash money within 15 days otherwise the politicians won't be able to make money.

WHY IS THERE THE CRITICISM OF ELECTORAL BONDS?

The central criticism of the electoral bonds scheme is that it does the exact opposite of what it was meant to do: bring transparency to election funding. It should be the right other people to know how much rupee has been donated by whom.

The recent disclosures that the Election Commission (EC) and the Reserve Bank of India (RBI) had expressed reservations about the Electoral Bonds scheme highlight the importance of this issue. In 2017, the then RBI Governor wrote to the then Finance Minister that “Allowing any entity other than the central bank to issue bearer bonds, which are currency-like instruments, is fraught with considerable risk and unprecedented even with conditions applicable to electoral bonds.” The EC warned that this would allow illegal foreign funds to be routed to political parties.

Critics such as Anjali Bhardwaj, co-convenor of the National Campaign for People’s Right to Information, have noted that more than 75 percent of all electoral bonds have gone to the BJP, which is in power at the Centre.

ISSUES ARE ASSOCIATED WITH THE SCHEME

The Electoral Bond Scheme acts as a check against traditional under-the-table donations as it insists on cheques and digital paper trails of transactions, however, several key provisions of the scheme make it highly controversial.

Anonymity: Neither the donor (who could be an individual or a corporate) nor the political party is obligated to reveal whom the donation comes from.
Asymmetrically Opaque: Because the bonds are purchased through the State Bank of India (SBI), the government is always in a position to know who the donor is.
Channel of Black money: Elimination of a cap of 7.5% on corporate donations, elimination of the requirement to reveal political contributions in profit and loss statements.

PRELUDE

According to a National Election Watch and Association for Democratic Rights (ADR) survey, 40 percent of the newly elected members have declared criminal cases, while 12 percent have serious criminal cases pending against them.

Electoral bonds are the instrument but need to keep in our mind that there are some pros and cons to each thing and these Electoral bonds have the issue of opaqueness which results in corruption and the use of black money in politics for enticing people to incline on one side. This leads to the influence of those businessmen(who give donations to the political parties) in the politics and the policies of the government which is very harmful to democracy because the businessmen will try to make things their own accord. Voters need to demand changes and we need voter awareness campaigns. The simple message from voters to political parties could be -

“We like you, not your big money. If you want, we will all pitch in and give small individual donations ."

. . .

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