Here is your short essay on our penal system

Apart from minor acts, both at central and state levels, the police in India is supposed to prevent and in case of occurrence investigate offences under Indian Penal Code, which are cognizable in nature.

In this work, it is required to operate according to procedure laid down in the Code of Criminal Procedure, originally framed in 1898, but replaced with a new Act in 1973. Another major Act, promulgated in 1872, lays down the law of evidence for criminal jurisprudence in the county.

The Indian Penal Code was enforced in 1862. This code which defines the basic crimes and punishments, have over the years, undergone many changes. It is noteworthy that some of the social evils, such as offences relating to marriage, like dowry deaths or sexual offences have been made more severe and their ambit widened.

In respect of some of these offences, like dowry deaths under Section 304b, at par with Prevention of Corruption Act, presumption of innocence of accused, has been done away with.

Although, a new Criminal Procedure Code came into effect in 1973, in many ways it has made the task of police more difficult. More importantly, the code has not helped much in making the justice delivery system speedier.

The accused, particularly powerful ones, very often succeed in delaying the trails through interlocutory petitions. Section 438 of the new code, provides for grant of anticipatory bail to accused in non-bailable offences, which was not there earlier.

The idea was laudable, no doubt i.e. to provide protection to weak and poor against action by the Police or from actions arising out of nexus of Police with the Mafia. But the advantage of this provision has been more often than not taken by “Chandraswamis” and the like rather than weaker sections of the society.

Liberal grant of bail to many has further added to the problem of Police and the enforcement agencies. In a limited study done by B.P. R&D some years ago, it was noticed that percentage of persons released on bail in non-bailable of­fences was 77.5; 6.5 of whom had previous criminal records.

In Tamilnadu, in the year 1993, 83.5% of persons involved in committing non-bailable offences, were released on bail. In Metropolitan city of Delhi, 80.4% persons involved in committing non-bailable offences in 1993 were released on bail, of which 12.2% had previous criminal records.

The Indian Police continues to be distrusted by large sections of society, including law makers. In other democratic countries, including the UK, confessions made before Police are admissible, subject of course, to scrutiny and cross-examination in the trial court. Section 25 of the Indian Evidence Act, however, prohibits any confession made to a Police Officer from being proved against an accused. In other words, confession made to a Police Officer is inadmissible, howsoever legitimate, and helpful and convincing that piece of evidence could be for providing a criminal charge against an accused.

Signifi­cantly, confessions made before other enforcement agencies, like, Income Tax, Central Excise, Enforcement Directorate, even Railway Protection Force are admissible. Law Commission and National Police Commission of 1979 had recommended that confession made before a senior Police Officer be made admissible, but in vain.

Right to Know:

The right to information helps people knows about their candidates and makes an informed choice in the elections.

The affidavit declaring the candidate’s criminal, financial and educa­tional record is a right of the voters, so that based on such information, they can decide to vote. The Supreme Court has only enunciated the people’s right to know under Article 19 (1) of the Constitution.

The Returning Officer has the right to reject the nomination papers of a candidate if he fails to provide such information by affidavit. Simply put, while furnishing criminal records, poor educational qualifica­tions or vast wealth may not invite rejection, but refusing to provide details could.

The idea behind the affidavit is that the candidate himself makes a voluntary disclosure.

The Supreme Court was quite clear in its May 2 judgement: “It is not possible for this court to give any directions for amending the Act or statutory rules.

It is for Parliament to amend the Act… However, it is equally settled that in case when the Act or rules are silent on a particular subject and the authority implementing the same has constitutional or statutory powers to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted”.

SC Intervention:

Amazingly, political parties have not accepted the progressive intervention of the Supreme Court. All parliamentarians rejected the court directive. On August 16, 2002, the government brought about an Ordinance, having diluted the court directive.

It says that disclosure of information about a candidate’s assets etc., can be made only after he gets elected. This deprives the people’s right to know about the candidate before the election. Secondly, the Ordinance says that after a candidate gets elected, the statement of assets and liabilities has to be given to the Presiding Officer of the two Houses and the State Legislatures.

Any contravention will not come before the courts but will come before the Privileges Committee of the House. Consider how political parties are protecting the corrupt in their ranks.

There is no mention about the candidate’s income either in the Supreme Court’s directive or in the Ordinance; though this will help people know the candidate’s degree of corruption at the end of his five-year tenure.

Criminal Record:

The court’s directive on the disclosure of criminal record before the Returning Officer would have helped voters to know the antecedents of their candidates before making their choice. The Supreme Court wanted the following declaration by candidates:

» Whether the candidate was convicted, acquitted or discharged in any criminal offence; if convicted, whether he/she has been sentenced, imprisoned or fined;

» Whether the candidate was accused of any offence punishable with imprisonment for two years or more

In the Ordinance, there is avoidable ambiguity about the extent of disclosure of criminal records. There must be clear-cut provisions to bar the entry of criminals in Parliament and State Legislatures.

Article 19 (1) (a) provides for freedom of speech and expression. The voter’s freedom of expression in case of election would include casting of votes i.e. the voter speaks out or expresses by casting vote for this purpose; information about the candidate is a must.

This right of information of the voter is denied by the introduction of a new Section 33 (b) in the Ordinance which says: “Notwithstanding any­thing contained in any judgement, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election, which is not required to be disclosed or furnished under this Act, or the rule, made there under”.

Thus, the real purpose of the Ordinance was to substantially nullify the Supreme Court’s directive.

President’s Queries:

President A.P.J. Abdul Kalam raised certain points and sent back the Ordinance to the Union Government for reconsideration. However, the government returned it back to him the same day for his assent. The President had no choice, but to sign on the dotted line.

On August 28, 2002, the People’s Union of Civil Liberties (PUCL) has filed a writ petition in the Supreme Court against the Union Government challenging the Representation of People (Amendment) Ordinance, 2002, promulgated by the President.

Never before have had the people reacted against an Ordinance. A large number of good leaders among the political parties must be sharing people’s concerns and apprehensions. As the citizens are united against the Ordinance, they are bound to succeed.

Collective Experience:

With the scuttling of the Supreme Court’s directive on electoral reforms, the political parties have only exposed themselves before the people. Apparently, they cannot do away with corruption and criminality in public life.

Most political parties are not amendable to any appeals, protests or suggestions by citizens’ groups and NGOs. Our collective experience suggests that even appeals to voters “not to vote for the corrupt people and criminals” do not yield results, as there are hardly any honest and decent candidates in the elections. Both the options have failed to succeed.

Therefore, an independent mass movement has become necessary. The people should assert their powers. A united people’s movement has to make it clear to our political leaders that they cannot ignore the people anymore; that the people can punish the criminals and the corrupt in politics.

Changes will have to come through peaceful, democratic and constitutional methods. Only an independent mass movement can assert the people’s power.

The good and decent individuals will be motivated to stand for elections once they see this ground force behind them. Today, good people are reluctant to join politics. In the absence of ground support, they also face the danger of losing their security deposits. But a ground support force, which can work for their electoral success, will be able to motivate them to stand for elections.

The demands of a suc­cess story are: creation of a ground force, motivating good people to stand for election, and then, mak­ing non-voters to vote. The collective mass movement can change the quality of our Parliament and state legislatures in a big way.

Independent Movement:

An independent mass movement will neither have big money nor big muscle power. Such a movement has to be cost effective and manageable. With determination and focussed effort, it is achievable.

This is the most cost effective way to get decent people elected and eliminate corruption and criminalisation of politics.

It is possible to form a ground force of 20,000. There are well-meaning organisations among youth, students, women, senior citizens, professional organisations and NGOs.

The collective strength of these organisations plus a new mass movement can organise more than 20,000 members. Unity of purpose and focus can be achieved amongst the existing organisations and new members enrolled through a mass movement.

Pressure Groups: Concerned citizens of eminence and NGOs like AGNI, Citizens for National Consensus (CNC), Dignity Foundation, A Hundred Citizens, Lok Satta, Nagar, Citispace, PROUD and many such other organisations and NGOs can be involved in the mass movement.

Pressure groups at the top can influence changes in the electoral laws, opinions in governance and in Parliament and state legislatures. Such protests will also embolden and motivate the masses. The next is to jointly organise a mass movement for cleaning up criminalisation and corruption in politics.

Mumbai has started many historic movements. It can once again be the torch-bearer of blazing another success story. Let us think of the enormous resources that would be released in a corruption- free India for growth and development of the entire country and for raising the quality of life to human levels for those co-citizens, who .still live in sub-human conditions.

Enormous resources, siphoned off in corruption, can be utilised for human resource development and for the growth and development of rural and urban India. There is need for a new beginning to make India corruption-free.

The growing criminalisation and corruption of politics in India, the desire of the masses of people to put an end to it and the inability of the bourgeoisie to provide any solution, reflect the acuteness of the crisis of Indian parliamentary democracy.

It is a factor that is contributing to the further deepening of the crisis of political theory and practice in India.

The domination of the polity by criminal and corrupt parties and individuals has become an accepted fact in the fiftieth year of the Indian Republic. The response of the ruling circles is to lament about it, on the one hand, and to use the occasion to settle scores with their rivals, on the other hand.

As a result of the acute rivalry, leading political figures of the major parties in the Parliament are getting exposed for corrupt and criminal deeds, one after another. However, the quality of the system remains the same. The economy continues to be a system of plundering the land and labour of the people by Indian and international monopolies, while political power continues to reside in the hands of an exclusive caste of politicians and “recognised” political parties, to the exclusion of the vast majority.

“It is upto the major parties not to field criminals as candidates”, says the Election Commission. In other words, it is being revealed for all to see that under the existing political system, while the people have the right to vote they have no means to effect any control over the selection or conduct of their elected representatives; they have to place their hopes in the very parties that are criminalising the polity in the first place!

At the end of a 65-hour marathon debate in the Parliament at the end of August, 2002, an agenda was adopted unanimously by all the parliamentary parties. This “Agenda for India” is supposed to reflect the commitment of these parties to de-criminalise politics and ensure probity in public life. However, it is being openly admitted even in the bourgeois media that this agenda has nothing of substance to offer to the people.

The broad masses of people who were left out of this “historic debate” are supposed to believe that even though the polity will remain dominated by the same parties as before, serving the same vested interests in society, they will henceforth not field criminals as candidates.

After fifty years of betrayal of promises by these parties, the people are being asked to place their faith in yet another promise, that these parties will henceforth eschew criminal and corrupt activities.

While the Prime Minister and other esteemed Members of Parliament called for a “war against criminalisation and corruption”, not one of them specified exactly what was the source of the problem and against whom should this “war” be directed.

The Prime Minister announced during the parliamentary debate that he was with the Election Commission on the issue of tackling criminalisation of politics. In other words, he believes that action should be confined to the legal sphere of banning criminals from I the electoral arena, creating the impression that there is nothing wrong with the political system; only | some individuals are misusing the system.

The “Agenda for India”, to which all the parliamentary parties are signatories, has not been set by I the people of India.

It has been set by the Members of Parliament, acting as trustees of the people. But who gave these MPs the power to set the agenda in the name of the people? Did the people give this | power to them in the first place?

As long as the people have no say in the selection of candidates for election, they do not have the right to elect and be elected. Hence the people’s agenda will need to assert the right of the electors to select the candidates.

The question of selection can no longer be left in the hands of privileged elite who I claim to be the trustees of the people. This also implies that political parties need to be subordinated to the will of the people, instead of the people being subordinated to the will of the political parties and 1 their respective high commands.

The increasing exposure of the criminal and arbitrary nature of political power and the alienation of [ the people from this power is making it extremely difficult for the bourgeoisie to rule in the old way forced to address the demand for the renewal of democracy and the cleansing of the polity.

However, the bourgeoisie is afraid of making a clean break with the past and starting afresh. It is afraid of qualitative change. It refuses to address the problems posed by Indian political theory at this time. It is hoping to tide over the crisis with some minor adjustments, some legal reforms in the electoral process, while the fundamental nature of the system is preserved. Such an approach will only prolong and intensify the crisis further, as the criminalisation of politics will continue to grow rapidly.

The criminalisation of politics is a reflection of, and a factor that aggravates the crisis of the political system, which in turn is rooted in the economic crisis of Indian capitalism. Only a qualitative change that transforms the system from its very roots can resolve this crisis in favour of the people.

In the realm of political theory, enlightened Indian minds need to reject the notion of the State as a trustee and thereby negate the need for the European political institutions that have been implanted on Indian society.

They have to develop modern Indian political theory and institutions that would enable the Indian people to govern them and to get rid of capitalism and all forms of exploitation and oppression of persons by persons.

In the sphere of practical politics, the broad masses of people need to assert their right to control the selection of candidates, demanding that this cannot be left in the hands of political parties.

United political action on this question would be an important step in the direction of empowering the people so as to achieve the qualitative transformation of society.