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Constitutionalism and Criminalisation of politics

Author: Aishwarya Pawar

Designation: Law Student, Karnataka state law university's law school, Hubballi. 

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The word 'Constitution' and 'Constitutionalism' have different meanings. A country may have the 'Constitution' but not necessarily 'Constitutionalism'. For example, a country with a dictatorship, where the dictator's word is law, can be said to have a 'Constitution' but not 'Constitutionalism'. Constitutionalism recognises the need for the government but insist upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting powers of legislature and the executives under some restraints and not making them uncontrolled and arbitrary. India is known as a democratic country. Democracy is the basic structure of our country.

In Yogendra Kumar Jaiswal and others v state of Bihar and others the word 'corruption' was defined as, a 'noun' when assumes all the characteristics of a verb, becomes self-infective and also develops resistance to antibiotics. A written Constitution with, the doctrine of rule of law and separation of powers, free elections to legislature, accountable and transparent democratic government, decentralisation of power are some of the principles and norms which promote Constitutionalism in a country.

I believe the recent judgement given by Justice R.F. Nariman and Justice S. Ravinder Bhat in Rambabu Singh Thakur v. Sunil Arora, wherein the directions were issued in relation to criminalisation of politics strengthens constitutionalism and democracy.

Some of the directions given were such as- that it shall be mandatory for political parties to uphold on their website detailed information regarding individuals with pending criminal cases who have been selected as a candidate, along with the reasons for such selection, that the information shall also be published in the newspapers and that if a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in Contempt of this court's orders/directions.

Let us remember what Dr. B.R.Ambedkar said - However a good Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be good lot.

Our Constitution does not contain any provision regarding the qualification of a candidate on basis of his/her educational or moral qualification. Our Constitution only requires simple qualifications i.e. resident of the country, a particular age of majority and not holding any office of profit. Which means person with a criminal background can also participate and get through the election procedure. In 2002, Supreme Court had ruled that the Election Commission should call for the information from each candidate on affidavit regarding his past criminal record, his financial assets, his liabilities to public sector bodies and educational qualifications in Union of India v Association of Democratic Reforms. Again in 2018, Constitution Bench consisting of then the CJI Dipak Misra, J. R.F. Nariman, J. A.M. Khanwilkar, J. D.Y. Chandrachud and J. Indu Malhotra decided that it is up to the Parliament to make laws in relation to disqualification of membership from parliament in Public Interest Foundation and others v Union of India, keeping in mind the doctrine of separation of powers, but then it did give the directions. Those directions were being disregarded and thus this 2020 judgement.

Grounds for disqualification from a member of a House of Parliament and State legislative Assembly are given under Article 102 and 191 of Constitution of India. The grounds are -

1. If a competent court has declared him to be of unsound mind.

2. He is an undischarged insolvent or he is not a citizen of India, or has involuntarily acquired the citizenship of a foreign State or he holds an office of profit under the Central or state government.

There is no specific provision related to criminalisation of politics in Constitution. Representation of People's Act,1951 mentions some grounds for disqualification under sections 8, 8A, 9,9A etc., that by convicting for offences punishable with death or life imprisonment, they should disqualify a candidate. But because, most of the political candidates are acquitted, the Act fails serving the purpose. There is no disqualification if a candidate has only charges on him. Disqualification in India works only if a candidate is convicted for a particular crime, but again that is unusual.

There have been Law Commission Reports 244th on 'Electoral Disqualification', Case laws interpreting in relation to Criminalisation of politics but still there is lack of consensus amongst the political parties. But we as a citizen should be aware of the fact that as to who is governing us and our country and also, we as a voter have a fundamental right under Article19(1)(a) to be aware of the antecedents of a political candidate (as decided in PUCL v UOI).

The increasing nexus between criminals and politics threatens the survival of any true democracy and thus decisions given by Judiciary as is given in Rambabu Singh Thakur v Sunil Arora strengthens Constitutionalism.

Hopefully, the decision will be implemented in the ongoing Bihar elections and we now have time to act as vigilant citizens. Lastly, the words of Rajendra Prasad- it requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas... we can only hope that the country will throw up such men in abundance.
























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