The Supreme Court on Tuesday rued the fact the legislature has not acted to curb criminality in politics. An analysis by the Association for Democratic Reforms, based on candidate-affidavits in the recent assembly elections in Assam, Kerala, Pudducherry, Tamil Nadu and West Bengal, shows that about half the lawmakers elected are named in criminal cases—and nearly a third face serious criminal cases. The proportion of winning candidates with serious criminal cases within the total pool of winners for two national parties, the BJP and the Congress, was 33% and 41%. The SC’s realisation comes after multiple directions to the legislative branch of government to act. The SC has been thwarted because the political class knows ‘winnability’ matters more in electoral politics than clean antecedents.

No wonder, then, all assemblies covered in the ADR report welcomed sharply members with criminal antecedents in sharply higher numbers this election, compared with the last. A very similar picture exists at the Lok Sabha level.

The SC was hearing the matter concerning 10 political parties that fielded such candidates in the Bihar assembly poll last year, and were in alleged breach of its 2020 order. This order directed all parties to publish criminal records of their candidates, the reason behind the latter’s selection (and winnability couldn’t be cited) and an explanation why clean candidates couldn’t be selected. Nearly a year-and-a-half after, the SC doesn’t see much cause to vest hope in the parties. It is a sorry picture since the SC has led the charge against criminality in politics, with nearly zero effect. Its 2014 order that trials of politicians in criminal cases be concluded within a year is mocked by the fact that this hasn’t happened even with dedicated fast-track courts. And, it isn’t the political class alone that has failed—even the Election Commission of India (ECI) must share blame. Indeed, the 2020 order was passed when the ECI’s failure to have the apex court’s 2018 order on publishing of criminal antecedents of candidates implemented was challenged. While the ECI had ordered mandatory disclosures on various media, there seems to have been no amendment to the Election Symbol Order 1968 or the Model Code of Conduct to reflect this. Under Paragraph 16A of the 1968 Order, the Commission is empowered to suspend or withdraw recognition of a political party for failure to follow its lawful directions and instructions. The ECI had, earlier this month requested the SC to clarify on its power to de-recognise political parties, though former SC judge Justice Madan Lokur and other experts maintain the ECI has many powers to get parties to toe the line.

There is no denying that criminal charges against some may be politically motivated, but the larger point is that the political class needs to be told that criminal lawmakers won’t be rewarded with electoral victories. Institutions obligated to ensure this have to pull all stops. Voters too will have role to play, and civil society must be ready to create the requisite awareness. Businesses must be persuaded against donating to parties—made easy by the anonymity offered by electoral bonds—that field candidates facing serious criminal charges. The message to the political class must be ‘crime and politics can’t be symbionts’.