Voicing concern about the “alarming increase” in number of persons with criminal backgrounds being elected Members of Parliament and Legislative Assemblies of states, the Supreme Court has given directions to impel and urge political parties to “explain” why such candidates are given tickets.
These directions include:
1. It is compulsory for all political parties to declare, disclose and publish all details regarding pending criminal cases against their chosen candidates, not only in local newspapers, but also on party websites and social media handles.
2. In addition to the details of pending cases, the parties will also have to publish “the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates”.
3. The “reasons” given for selection of the candidates have to be “with reference to the qualifications, achievements and merit of the candidate concerned, and not mere ‘winnability’ at the polls”.
The judgment was passed in a contempt of court case filed against the Chief Election Commissioner of India in the case of Public Interest Foundation v. Union of India, 2018.
• The petition claimed the ECI had failed to take any steps to ensure the implementation of a 2018 judgment of the bench, which had made it mandatory for political parties to disclose and issue all criminal cases pending against their candidates.
• The petitioners asserted and contended that parties were “circumventing” the 2018 judgment by publishing the details of their candidates’ criminal background in “obscure and limited circulation newspapers” and “making the webpages on their websites difficult to access”.
• Based on the 2018 Judgment by Public Interest Foundation v. Union of India, similar directions were issued by Election Commission during the 2019 Lok Sabha Election.
• Even 244th and 255th Law Commission Reports on Electoral Disqualifications and Electoral Reforms respectively have suggested certain important measures to reform and cleanse Indian Politics.
What does the Representation of People Act, 1951 say on this?
Forthwith, under the Representation of Peoples (RP) Act, lawmakers cannot take part in contesting elections only after their conviction in a criminal case. Section 8 of the Representation of the People (RP) Act, 1951 mentions that a person convicted with a sentence of two years or more will be debarred from contesting elections. Nevertheless, those under trial continued to be eligible to contest elections.
Efforts by Supreme Court in this regard:
The Supreme Court has time and again enunciated the concern regarding the immaculateness and purity of legislatures.
1. In 2002, it made it obligatory for all candidates to file an affidavit before the returning officer, disclosing criminal cases pending against them.
2. The popular direction/order to introduce NOTA (None Of The Above) was intended to make political parties think before giving tickets to the tainted.
3. In the monumental judgment of March 2014, the SC acknowledged the crucial need for purging politics of criminalisation and ordered all subordinate courts to decide on cases involving legislators within a year, or give reasons for not doing so to the Chief Justice of the High Court.
Main reasons for Criminalization:
1. Corruption 2. Vote bank. 3. Lack of governance.
Important Landmark Judgments to Prevent Criminalisation in politics
• The case of Union of India v. Association for Democratic reforms and Another,2002 directed the Election Commission to call for information on affidavit under Article 324 on criminal background including previous conviction, acquittal or discharge along with fine; declaration of assets of the candidate and his/her spouse along with number of dependents; liabilities including debts owed to any financial institution and educational qualification of the candidate.
• 2005, Ramesh Dalal v. Union of India – sitting MP or MLA shall also be subject to disqualification from contesting elections if they are convicted and sentenced to not less than 2 years of imprisonment by court of law. These judgments effectively disallowed people having criminal background to enter politics.
• Public Interest Foundation and Ors. v. Union of India and Another requested the Law Commission to expedite recommendation on the following issues:
1. Whether disqualification should be triggered upon conviction or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer?
2. Whether filing of false affidavits under Section 125A of the Representation of the People Act, 1951 (RPA) should be a ground for disqualification?
Impact of Criminalisation of Politics
• As per National Commission to Review the working of Constitution, when law breakers become law makers it impacts the overall quality of law making and halts important reforms towards cleansing of politics from criminalisation.
• Such people control law enforcement agencies and they can influence and interfere with their own criminal cases where they are implicated.
• It increases money and muscle power during elections and this increases the bargaining capacity of such candidates to the extent of buying votes.
• It increases caste-based politics as such people can mobilise voters from their specific community to vote for them.
• Criminalisation of politics erodes trust of people in democratic process in India.
What is the way out?
There are three possible options.
1. Firstly, political parties should themselves decline giving tickets to the tainted.
2. Secondly, the Representation of People Act should be amended to debar persons from contesting elections against whom cases of a heinous nature are pending.
3. Thirdly, fast-track courts should decide the cases of tainted legislators quickly.
Other suggested measure to curb criminalization of politics:
1. Bringing greater transparency in campaign financing is going to make it less attractive for political parties to involve gangsters.
2. The Election Commission of India (ECI) should have the power to audit the financial accounts of political parties.
3. Broader governance will have to improve for voters to reduce the reliance on criminal politicians.
4. The Election Commission must take adequate measures to break the nexus between the criminals and the politicians.
Debasement and criminalisation of politics is striking at the very foundations of democracy. Consequently, Parliament must take strides critically to check this hazard. Candidates, ideological groups and political parties must give wide exposure to criminal cases pending against her/him in the local media, both print and electronic, after s/he files nomination to contest elections.
 Public Interest Foundation & Ors. vs Union of India and Anr., Civil Original Jurisdiction, Writ Petition (Civil) No. 536 of 2011.
 The Representation of the People Act, 1951.
 Union of India v. Association for Democratic Reforms and Another, AIR 2001 Delhi 126.
 Ramesh Dalal vs Union of India & Ors., 1988 SCR (2)1011.
Author Details: Sharadindu Shekhar (School of Law, Bennett University )
The views of the author are personal only. (if any)