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The Supreme Court is obviously aware of the clear provisions in the Constitution as well as in the Peoples’ Representation Act that govern elections to the Lok Sabha as well as to the State Assemblies

Afierce debate is on in the capital over the electoral reforms in the wake of the move by the Election Commission to impose certain conditions on those seeking to contest the elections to the Lok Sabha as well as State Assemblies. The Election Commission made a move in the light of the instructions issued by the Supreme Court to ensure that persons with a criminal background were not allowed to enter the Houses of the People’s Representatives at the Centre and in the States.

The Supreme Court is obviously aware of the clear provisions in the Constitution as well as in the Peoples’ Representation Act that govern elections to the Lok Sabha as well as to the State Assemblies. Yet the Supreme Court has desired that those with criminal antecedents, whether convicted or not, should not be allowed to enter the Houses of the Peoples’ Representatives. There should also be norms for minimum literacy for eligibility in the fray.

As soon as the Election Commission initiated the move to implement the instructions issued by the Supreme Court, after waiting for an initiative from the Government to carry out the order of the Supreme Court in this respect, all political parties vociferously rejected these norms. The Government has even come up with alternative electoral reforms and prepared a new legislation that would amend the election laws. Their strong opposition to the electoral reforms in the light of the Supreme Court instructions might appear absurd to those who look forward to Western cultural norms for implementation in Indian conditions of social and public life.

Most middle class people who are urbanised and oriented through Western educational norms and moral standards were aghast at the opposition offered by all political parties from the Indian National Congress to the Left. But the political parties have experience of practical life in India, particularly so of rural life. They are aware that it is the usual practice to involve a probable opponent in a criminal case. One has to merely file a First Information Report with the nearby police station. The obliging police official would immediately take down the FIR coming from a politician though he might hesitate to register a genuine complaint from a commoner. It takes years for completion of investigation but the person accused remains on the police records as a person charged with criminal activities. It then becomes a part of his criminal history displayed at the police station. That is sufficient for his political opponents to splash in the media.

The election law clearly states that those who have been convicted of criminal acts and sentenced could not be allowed to enter the electoral fray. But it would not be fair to prevent anyone from contesting an election merely on the basis of First Information Reports filed against him or her. There is no remedy available to the accused person to prove his or her innocence in the eyes of the law. He has to await the completion of the police investigation and the trial and that might take years. It would be unjust to anyone who proved to be innocent later on the completion of formalities if he or she were to be denied an opportunity to contest an election. Persons selected should be disqualified if they were proved to be guilty and punished for the crime later.

Accusing an opponent of a crime that he has never committed is a common practice in the north. It might not be prevalent in Gujarat, Maharashtra or in the Southern States. The law of the lathi prevails in the north because social life is full of conflicts and confrontations due to the wide social divide and caste inequalities are far sharper than in other parts of the country. Disputes are settled through violent confrontation or through accusations of crime. Many must have been victims of false accusations in property disputes or even in social or marital discord. Police complaints are widely resorted to in most parts of the country.

Yet it cannot be denied that criminalisation has afflicted the national and state polity. Many who have been known for their criminal activities have entered the political arena in the last two decades. Haji Mastan, known smuggler of Mumbai, could form a political party and contest the election to the Lok Sabha. Abdul Lateef, who was known for his criminal activities in Ahmedabad, could get elected from five wards in the civic elections in Ahmedabad. The bandit queen, Phoolan Devi, could become a Member of the Lok Sabha twice even though her criminal past was known. It was true that there was social injustice done to her that had prompted her to take up arms but she also had taken the law into her hands and killed dozens of persons. Then there are D. P. Yadav and Pappu Yadav in Bihar and Kalani in Maharashtra and many others in the country who were known to have a criminal past.

There are as many as 29 MLAs in Andhra Pradesh and an equal number of MLAs in Bihar including some holding the office of ministers who are facing cases on charges of criminal acts. They have successfully contested the elections and have adorned seats in the Lok Sabha and in State Assemblies.

There was a need to prevent such persons who have taken the law into their hands and committed crimes from becoming lawmakers. But legislation was not the effective method to prevent their entry.

The Government has come up with a proposal to amend the election laws by inserting certain amendments so as to prevent those who have been twice accused of heinous crimes from contesting the elections. The ruling party has argued, and others have endorsed the logic, that it was too dangerous to give sweeping powers to the returning officers to accept or reject the nomination papers on the basis of subjective assessments. Such sweeping powers would provide undue advantage to the party in power. One can easily realise the dangers of such powers in the hands of the returning authority. Returning officers were instrumental in implementation of the desires of the National Conference and the Congress Party alliance in the 1987 Assembly elections in Kashmir. A large number of nominations of those who were opposing the alliance were rejected at the primary stage. The political discontent that followed turned into unprecedented militancy. There is no guarantee that similar provisions would be used fairly and justly by returning officers whose future depends entirely on the ruling party. Of course, there are exceptions who show courage and take just decisions in accepting or rejecting nomination papers.

But to prevent a few with criminal backgrounds and records from entering the electoral fray, the majority of innocents could be punished by being subjected to the vagaries of the sweeping powers in the hands of officials whose record of impartial and just behaviour is not very illuminating. Social awareness of the electorate is the only effective remedy for preventing entry of persons with a recorded criminal past into the political arena. Why should Lateef and the Yadavs get elected even when their criminal record was public and known to all? That is the question that needs a convincing answer. Can it be that they were able to run a parallel but effective government where justice is dispensed quickly and fairly? Why should a long line of people seek assistance and relief from Yusuf Patel for their social and personal life? Is it not because the rest of society and the administration are unable to provide such relief?