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Report No. 244

C. The Role of Political Parties

Political parties are a central institution of our democracy; "the life blood of the entire constitutional scheme." 20 Political parties act as a conduit through which interests and issues of the people get represented in Parliament. Since political parties play a central role in the interface between private citizens and public life, they have also been chiefly responsible for the growing criminalisation of politics.

20. Subhash Chandra Agarwal v. Indian National Congress and Others, [2013] CIC 8047
<http://www.rti.india.gov.in/cic_decisions/CIC_SM_C_2011_000838_M_111223.pdf> accessed on February 4, 2014.

Several observers offer explanations of why parties may choose candidates with a tainted background. As discussed above, studies show that candidates with criminal records have fared better in elections and that criminals seem to have an electoral advantage.21 Since electoral politics is a combination of several factors, often issues like ethnicity or other markers of the candidate may overcome the reputational loss he suffers from the criminal records.

21. B. Dutta & P. Gupta, 'How Do Indian Voters Respond to Candidates with Criminal Charges: Evidence from the 2009 Lok Sabha Election' (MPRA Paper Series 38417, 2012).

Further, electoral politics is largely dependent on the money and the funding that it receives. Several studies by economists estimate that candidates and parties in the 2009 general elections alone spent roughly $3 billion on campaign expenditures.22 Huge election expenses have also resulted into large-scale pervasiveness of so-called 'black money'.23 The Law Commission has earlier also expressed the concern of election expenses being far greater than legal limits.24

Therefore, campaign funding is one of the most important concerns for political parties. Since candidates with criminal records often possess greater wealth, the negative effect of the stigma of criminal charges can be overcome by greater campaigning resources.25 Thus, even if a candidate has any criminal record, he may fare well in elections due to the positive effect of the other markers.

Thus, overall a candidate with a criminal record can prove beneficial to political parties in several ways. Not only does he ensure greater inflow in money, labour and other advantages that may help a party in successful campaign, but also possess greater 'winnability'.26 Many studies have consequently highlighted the direct relationship between the membership of local criminals and inflow of money into the coffers of political parties.27 This is dealt with in detail later in the report.

22. Timmons, Heather and Hari Kumar, 'India's National Election Spreads Billions Around', The New York Times (May 14, 2009).

23. Background Report on Electoral Reforms, Ministry of Law and Justice (2010).

24. Background Report (n.23)

25. Dutta & Gupta, (n.21).

26. Dutta & Gupta, (n.21).

27. Vaishnav, (n.7).

Further, candidate selection procedure is another factor for parties declaring candidates with criminal records. Since political parties in India largely lack intra-party democracy and the decisions on candidature are largely taken by the elite leadership of the party, the politicians with criminal records often escape the scrutiny by local workers and organisation of the party.28

28. Vaishnav, (n.7).

Thus, the crime-politics nexus demands a range of solutions much broader than disqualification or any other sanctions on elected representatives. It requires careful legal insight into the functioning of the political parties and regulating the internal affairs of parties. This report will also suggest the reforms for regulating the organisational posts of political parties.

The Law Commission of India, in its 170th report quoted in Subhash Chandra Agarwal,29 by the Central Information Commission ("CIC") has made certain observations which are very pertinent to describing the position of political parties in our democracy:

29. Subhash Chandra Agarwal (n. 20).

"It is the Political Parties that form the Government, man the Parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the Political Parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside".30

30. "Reform of Electoral Laws", 170th Report of the Law Commission of India, 1999.

Additionally, under Section 29A(5) of the Representation of People Act, 1951, which currently regulates the functioning of political parties, the political parties are required to bear "true faith" and "allegiance to the Constitution" of India as by law established.31 Further, in order to reach to the conclusion that political parties are public authorities, the CIC also referred to several constitutional provisions which accord rights and obligations to political parties.32 Thus, political parties are not merely any other organisation, but important institutions having constitutional rights and obligations.

31. Section 29A(5), The Representation of People Act, 1951.

32. Schedule X, The Constitution of India, 1951.

The NCRWC highlighted similar concerns on the functioning of political parties and recommended a separate law for regulating some of the internal affairs of political parties in order to deal with the crime-politics nexus.33 It also opined that in case of conviction on a criminal charge, apart from disqualification of the representative, a political party should be held responsible and be sanctioned in some way, for example, by de-recognition of the party.

33. Chapter 4, Volume I, 'National Commission to Review the Working of the Indian Constitution' at
<http://lawmin.nic.in/ncrwc/finalreport/volume1.htm> accessed February, 4, 2014.

Though the RPA disqualifies a sitting legislator or a candidate on certain grounds, there is nothing regulating the appointments to offices within the organisation of the party. Political parties play a central role in Indian democracy. Therefore, a politician may be disqualified from being a legislator, but may continue to hold high positions within his party, thus also continuing to play an important public role which he has been deemed unfit for by the law.

Convicted politicians may continue to influence law-making by controlling the party and fielding proxy candidates in legislature. In a democracy essentially based on parties being controlled by a high-command, the process of breaking crime-politics nexus extends much beyond purity of legislators and encompasses purity of political parties as well.

Thus any reform proposal must include relevant recommendations for political parties since the need for reform is crucial in this context as well. It is suggested that political parties should refrain from appointing or allowing a person to continue holding any office within the party organisation if the person has been deemed to lack the qualities necessary to be a public official.

Therefore, the legal disqualifications that prevent a person from holding office outside a party should operate within the party as well. For holistic reform, this recommendation must be taken into account. This is to be dealt with in a detailed manner in the report to be submitted to the Government of India on all issues relating to the Consultation Paper.



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