Power of Election

Commission of India to register FIRs and Criminal Complaints

The election is one of the most important pillars of Democracy. But nowadays, the process of election is getting contaminated and corrupt and not only this even the candidates are getting enrolled with having a criminal background. It was predicted by Mr. C. Rajagopalachari, 25 years ago wrote in his prison diary: “Elections and their corruption, injustice, and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us.

”In fact, even Vohra Committee in the report of the National Commission to Review the Working of the Constitution stated that” many criminals are seeking direct access to power by becoming legislators and ministers themselves.”The Constitution of India empowers the Election Commission under Article 324 for directions, control of elections, etc. to have free, fair, elections. Election Commission has various powers to conduct free and fair elections such as:

• Power To Order Re-Poll
• Power To Allot Symbols
• Power To Seek Information Regarding Election Expenses
• Power To Disqualify The Candidates
• Power to decriminalize politics

Though Election Commission as such does not have the power to register FIR or criminal complaints literally if there is any violation of Model Code of Conduct by any candidate then it can ask the police to register the complaint against such person.

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Recently, EC has recently asked the Honourable Supreme Court to allow political parties to get their members to disclose criminal cases against them so that the people know how many criminal offenders are there in such parties.

 Therefore, the court recently decided that sitting politicians who are convicted of criminal acts should be removed from office upon conviction.“Political parties and Corruption are co-related to each other. Influence of cash affects the election procedure, and has an evil impact on the election procedure and trading off the honesty of the discretionary vote based system remains a huge test today. “ Thus, to curb this problem of creeping evil impact, contesting candidates can be convicted under Representation of People Act. And thus The Representation of People Act, 1951 was enacted to fill the seats of House or Houses of Parliament and to the Houses of each State and the qualification and disqualification for the participation of these houses. As voters have the privilege to know who they are voting in favor of and as why it will help in discovering the suitable candidate in the election.

The qualification of contesting elections in India gets invalidated if there are any criminal allegations going on or the applicant has been sentenced before for any offense. 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. Therefore, If a person contesting election is charged with any criminal charges or has been convicted for the same earlier cannot contest elections in India. And, Section 8 of Representation of People Act, 1951 provides various grounds under which a person may be disqualification on conviction for certain offenses. Even if a person is on bail and his appeal is pending for disposal then also he will be disqualified from contesting elections.

There are various other statutes as well under which a person can be disqualified such as, Protection of Civil Rights Act, 1955 which provides for preaching and practice of untouchability, Section 11 of the Customs Act, 1962 which states the offense of importing and exporting of prohibited goods, Sections 10 to 12 of Unlawful Activities (Prevention) Act, 1967 i.e. offense of being a member of an unlawful association, The Narcotics Drugs and Psychotropic Substances Act, 1985 and The Prevention of Corruption Act, 1988.Not only this even, but various surveys had also shown that around 1/3 of elected candidates at the Parliament and State Assembly levels in India have some form of criminal background or criminal charge against them.

The studies had shown that candidates with criminal records have fared better in elections and that criminals seem to have an electoral advantage.The Supreme Court of India, in Lily Thomas v. Union of India case along with Lok Prahari v. Union of India, decided that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is sentenced for a crime and granted at least two years of imprisonment shall lose his/ her membership of the House with immediate effect. Following the decision of the SC, Rasheed Masood, a Rajya Sabha MP from Uttar Pradesh belonging to the Congress Party, was convicted for 4 years in MBBS seat scam and was disqualified from Rajya Sabha, Lalu Prasad Yadav, Lok Sabha MP from Saran, Bihar belonging to Rashtriya Janta Dal (RJD), was convicted for 5 years in fodder scam and was disqualified from Lok Sabha, etc.

Though Election Commission has absolute powers, but still it has to act in conformity with the law made by Parliament, even though the poll panel has powers to supervise and conduct a free and fair election, those powers have their limitations.“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.” Union of India v. Association for Democratic Reforms, made the analysis of criminal records of candidates possible by requiring such records to be disclosed by way of affidavit and therefore the public has had a chance to quantitatively assess the validity of such observations made in the previous reports.

The State Commission is deemed to be a civil court and when any such offence, as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (Central Act 45of 1860), is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the Statement of the accused as provided for in the code of Criminal Procedure, 1973(Central Act 2 of 1974), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973.

Therefore, any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian penal Code, 1860(Central Act 45 of 1860).“In Union of India v association for Democratic Reforms and Ors, the SC held that the jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word ‘elections’ is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.”It was held by the SC in the case of Mohinder Singh Gill and Anor v. Chief Election Commissioner and Ors that, “The framers of the Constitution took care to leave scope for the exercise of residuary power by the Election Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging in Art 324.

The Commission may be required to cope with some situations that may not be provided for in the enacted laws and the rules. That seems to be the raison d’etre for the opening clause in Arts 327 and 328 which leaves the exercise of powers under Art 324 operative and effective when it is reasonably called for in a vacuous area.

Conclusion

Over the years, the Election Commission has conducted a number of praiseworthy electoral reforms to toughen democracy and augment the fairness of elections. These reforms are quite ample and admirable. Undoubtedly, the election machinery, under the guidance of the Election Commission, deserves credit for conducting elections in a free and fair manner. However, our system is still infected by many vices. To win votes, political parties resort to foul methods and corrupt practices. Such maladies encourage the anti-social elements to enter the electoral fray due to the lack of their strict implementation. In order to eradicate these unfair tendencies, there is a need to strengthen the hands of the EC and to give it more legal and institutional powers. The EC must be empowered to punish the wayward politicians who disobey and violate the electoral laws.

Our election commission tries its best to remove the virus of malpractices. It is positive of strengthening and improving the working of democracy through free and fair elections. It has always plan better systems and is using advanced scientific technologies for maintaining the high reputation of the Indian elections. However, the success of reforms will largely depend upon the will of the political parties to adhere to and implement such reforms. An independent media and an enlightened public opinion have no substitute in pushing through reforms. If people vote according to their convictions and punish those who infringe the rules, corrupt practices will automatically disappear. And this will go a long way towards enabling democracy to thrive and grow to its full capacity.