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The Union government's introduction of the 130th Constitutional Amendment Bill marks a significant, albeit controversial, step in addressing the persistent issue of criminalization within the Indian political landscape. This proposed legislation aims to amend Articles 75 and 164 of the Constitution, which govern the Council of Ministers at both the Union and State levels, respectively. The core provision of the Bill stipulates that any Minister who is arrested and detained for a continuous period of 30 days in connection with an alleged offense punishable with imprisonment of at least five years shall be removed from their office. This removal would be predicated on the advice tendered by the Prime Minister (PM) or Chief Minister (CM), depending on the level of government. Crucially, the Bill introduces an element of automaticity: should the PM or CM fail to tender such advice, the Minister in question would automatically cease to hold office after the 31st day. A similar provision extends to the PM and CM themselves, mandating their resignation if arrested and detained for 30 consecutive days. However, the Bill allows for the subsequent reappointment of the PM, CM, or Minister upon their release from custody, raising questions about the potential for repeated cycles of arrest and reappointment. The proposed amendment also extends to Article 239AA, encompassing the National Capital Territory of Delhi, thereby subjecting ministers in the Delhi government to the same conditions. This proposed Constitutional amendment necessitates a two-thirds majority in both houses of Parliament for its passage, underscoring the significant political hurdle it faces. Furthermore, the government proposes similar amendments to parliamentary laws governing the Union Territories of Jammu & Kashmir and Puducherry, demonstrating a broader intent to standardize the treatment of ministers across various levels of governance. Given the magnitude and implications of the Bill, it has been referred to a Joint Parliamentary Committee (JPC) for thorough scrutiny, indicating the Parliament's recognition of the need for careful deliberation and potential revisions before enactment.
The existing legal framework, primarily embodied in the Representation of the People Act, 1951 (RP Act), addresses the disqualification of individuals from holding public office based on criminal convictions. Specifically, the RP Act stipulates that any person convicted in a criminal case and sentenced to imprisonment for a term of not less than two years is disqualified from being a member of Parliament or a State legislature for the duration of their sentence and for an additional six years thereafter. This provision aims to prevent individuals with serious criminal records from participating in the legislative process. However, a crucial caveat existed in the form of Section 8(4) of the RP Act, which provided a degree of protection to sitting members of Parliament or State legislatures. This section stipulated that the disqualification resulting from a criminal conviction would not take effect if an appeal was filed against the conviction. This effectively allowed convicted lawmakers to continue serving in their respective legislatures while their appeals were pending. However, the Supreme Court of India, in the landmark case of Lily Thomas (2013), struck down Section 8(4) of the RP Act as unconstitutional. The Court reasoned that this provision violated the principle of equality before the law and undermined the integrity of the democratic process. This ruling significantly strengthened the legal framework for preventing convicted criminals from holding legislative office. It is crucial to note, however, that the existing laws primarily focus on disqualifying individuals from being members of Parliament or State legislatures. They do not explicitly address the issue of ministers who are arrested and detained on criminal charges. This is the gap that the proposed Constitutional Amendment Bill seeks to fill, by providing a mechanism for the removal of ministers who are under criminal investigation and detention. In 2016, the Election Commission of India (ECI) further underscored the need for reforms in this area by recommending that the RP Act be amended to bar individuals against whom charges have been framed by a competent court for offenses punishable with imprisonment of at least five years from contesting elections. This recommendation reflects the growing concern about the increasing criminalization of politics and the need for more stringent measures to prevent individuals with criminal records from holding public office.
The proposed Constitutional Amendment Bill, while aiming to address the criminalization of politics, raises several critical issues that warrant careful consideration. One primary concern is that it could potentially lead to elected representatives losing their positions based on mere police action, even before the commencement of a trial and the establishment of guilt. This raises questions about the presumption of innocence, a fundamental principle of criminal justice. Critics argue that the Bill could be misused to target political opponents, as arrests and detentions can be influenced by political considerations. Another significant issue is the potential undermining of the principles of parliamentary democracy. The Bill essentially reduces the power of the elected Prime Minister or Chief Minister to choose their cabinet, as it mandates the removal of ministers based on a predetermined criterion (30 days of detention) rather than on the PM/CM's assessment of their competence and suitability. This could weaken the authority of the executive and create instability within the government. Furthermore, the Bill raises concerns about the potential for the central government to exert disproportionate power and initiate vindictive actions against ministers in states ruled by opposition parties. The central government's control over law enforcement agencies could be used to target ministers, leading to their arrest and detention, thereby triggering the removal provisions of the Bill. This could further strain the already fraught relationship between the central government and state governments in India's federal system. While the Bill aims to address a real problem – the criminalization of politics – its potential for misuse and its impact on democratic principles necessitate a thorough and nuanced debate. The Joint Parliamentary Committee (JPC) should carefully consider these issues and recommend appropriate safeguards to prevent the Bill from being used for political vendettas or undermining the stability of democratically elected governments. Alternative solutions, such as fast-tracking criminal trials involving politicians and strengthening the independence of investigative agencies, should also be explored.
The criminalization of politics represents a deeply entrenched malaise within the Indian democratic system. The presence of individuals with criminal backgrounds in positions of power erodes public trust in the government and undermines the rule of law. While the proposed Bill attempts to address this issue, it primarily focuses on the symptoms rather than the underlying causes. Addressing the root causes of criminalization requires a multi-pronged approach that tackles the systemic factors that enable individuals with criminal backgrounds to enter and thrive in politics. Reports by organizations like the Association of Democratic Reforms (ADR) have consistently highlighted the alarming extent of criminalization in Indian politics. According to ADR, a significant percentage of Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) have criminal cases pending against them. Moreover, ADR's analysis suggests that candidates with criminal backgrounds often have a higher chance of winning elections compared to candidates with clean records. This phenomenon is often attributed to factors such as the use of money and muscle power in elections, as well as the perceived "winnability" of candidates with criminal backgrounds, particularly in certain constituencies. A more effective approach to tackling criminalization would involve preventing individuals with criminal records from entering the political arena in the first place. This could be achieved by strengthening the laws and regulations governing the selection of candidates by political parties. Parties should be encouraged, or even mandated, to conduct thorough background checks of potential candidates and to prioritize candidates with clean records and a commitment to ethical governance. A crucial step would be for political parties to instill self-discipline and refrain from providing tickets to candidates with criminal records, even if they are perceived as "winnable." This requires a shift in the political culture, where parties prioritize integrity and ethical conduct over short-term electoral gains. In addition to preventing the entry of criminals into politics, it is also essential to expedite the resolution of criminal cases involving politicians. The delays in the judicial system often allow politicians with criminal cases pending against them to continue holding office for extended periods, undermining public confidence in the legal system. Fast-tracking these cases and ensuring that they are adjudicated in a timely and impartial manner is crucial for upholding the rule of law and deterring future criminal activity. Ultimately, addressing the criminalization of politics requires a collective effort from all stakeholders, including political parties, the judiciary, law enforcement agencies, and civil society organizations. By focusing on both prevention and punishment, and by promoting a culture of ethical governance, India can effectively combat the scourge of criminalization and strengthen its democratic institutions.
Furthermore, promoting transparency and accountability in political funding is crucial to curb the influence of money and muscle power in elections. Stricter regulations on campaign finance, coupled with robust enforcement mechanisms, can help level the playing field and reduce the reliance on illegal sources of funding. Empowering citizens with access to information about the assets, liabilities, and criminal records of candidates can also enhance accountability and enable voters to make informed choices. Civil society organizations play a vital role in raising awareness about the criminalization of politics and in advocating for reforms. By monitoring the performance of elected representatives, conducting research on the nexus between crime and politics, and mobilizing public opinion, civil society groups can contribute to a more informed and engaged electorate. Moreover, fostering a culture of ethical leadership and promoting values-based education can help instill a sense of responsibility and accountability among future generations of political leaders. By emphasizing the importance of integrity, transparency, and service to the public, we can cultivate a new generation of leaders who are committed to upholding the highest standards of ethical conduct. The proposed Constitutional Amendment Bill, while a step in the right direction, should be viewed as part of a broader and more comprehensive strategy to address the criminalization of politics. By focusing on both the symptoms and the root causes, and by engaging all stakeholders in the process, India can effectively combat this menace and strengthen its democratic foundations. It is imperative that the Joint Parliamentary Committee (JPC) thoroughly examine the Bill, consider its potential unintended consequences, and recommend appropriate safeguards to ensure that it is implemented in a fair and just manner. Only through a concerted and sustained effort can India overcome the challenge of criminalization and build a more ethical and accountable political system.
Source: What is the new Bill to remove PM, CM and Ministers? | Explained