The Supreme Court issued several directions on decriminalisation of politics in the past 15 years. Now it has shown an unusual restraint and lobbed the ball in the court of the lawmakers

Veteran freedom fighter and political visionary C Rajagopalachari wrote in his prison diary in 1922, “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...”

Almost a century on, India is grappling with the problem of criminalisation of politics. Earlier this week, the Supreme Court refused to issue directions to debar persons facing serious criminal charges from contesting elections. Displaying judicial restraint, a five-judge Constitution Bench headed by Chief Justice of India, Dipak Misra, left it to Parliament to enact a law to rid Indian politics of criminals. 

However, the Supreme Court has not always maintained such restraint in the past. In fact, it has often donned the mantle of an activist court and issued several directions on electoral reforms in the past 15 years, many of which have directly dealt with criminalisation of politics. 

There is nothing new about criminals entering politics and occupying ministerial positions. Such is the criminal-politician nexus that UP strongman from Pratapgarh, Raghuraj Pratap Singh alias Raja Bhaiya — who had dozens of serious criminal cases pending against him and had been jailed on terrorism-related charges — became minister in-charge of prison department in the Akhilesh Yadav government. There are dozens of such examples across India.

In its report submitted to the Government of India in 1993, the NN Vohra Committee had highlighted the dangerous nature of the nexus and suggested measure to deal with it.

However, 25 years on, the situation has only gotten worse. Notwithstanding recommendations of the Law Commission, the Election Commission, the Goswami Committee and the Justice JS Verma Committee, much remains to be done. The only hope has been the apex court that has, in the past, issued several directions on electoral reforms, on PILs filed by organisations such as Association for Democratic Reforms. 

The nature of criminal-politician nexus has been changing over the decades. In the 1970s, instead of politicians having suspected links with criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began to enter politics.

The 244th Report of the Law Commission of India says the extent of criminalisation pervading Indian politics has only increased over the years. In the 10 years since 2004, 18 per cent of the candidates contesting either national or state elections have criminal cases pending against them (11,063 out of 62,847). A total of 5,253 or almost half of these cases (8.4 per cent of the total candidates analysed), involve serious charges, including murder, attempt to murder, rape, crimes against women, cases under the Prevention of Corruption Act 1988, or under the Maharashtra Control of Organised Crime Act 1999, which, on conviction, would result in five years or more of jail, etc. As many as 152 candidates had 10 or more serious cases pending, 14 candidates had 40 or more such cases and five candidates had 50 or more cases against them.

Further, the commission observed that the 5,253 candidates with serious cases together had 13,984 serious charges against them. Of these charges, 31 per cent were cases of murder and other murder-related offences, 4 per cent were cases of rape and offences against women, 7 per cent related to kidnapping and abduction, 7 per cent related to robbery and dacoity, 14 per cent related to forgery and counterfeiting, including of government seals and 5 per cent related to breaking the law during elections.

The commission was of the further view that criminal cases were not limited to contesting candidates, but were against winners as well. Of the 5,253 candidates with serious criminal charges against them, 1,187  won the elections, i.e., 13.5 per cent of the 8,882 winners analysed between 2004 and 2013 and overall, including both serious and non-serious charges, 2,497 (28.4 per cent of the winners) had 9,993 pending criminal cases against them.

The extent of criminalisation can be gauged from the fact that in the current Lok Sabha, 30 per cent i.e. 162 MPs have criminal cases pending against them. Half of them have serious criminal cases against them. 

Another disturbing fact revealed by the data is that only 12 per cent of candidates with a clean record win on an average while 23 per cent of candidates with criminal record win.

As a result, candidates with criminal cases usually get ticket a second time. Not only do political parties select candidates with criminal backgrounds, there is evidence that untainted representatives later become involved in criminal activities. This only empasises the urgent need for a cleanup.

The Law Commission squarely blamed political parties for this sad situation.

The Commission recommended that since the stage of framing of charges is based on substantial level of judicial scrutiny, a frivolous charge will not stand such scrutiny and, therefore, given the concern of criminalisation of politics in India, disqualification at the stage of framing of charges is justified having substantial attendant legal safeguards to prevent misuse. But its recommendations never saw the light of the day.

The Centre has maintained that the Representation of People Act, 1951 already contained provisions for disqualification of MPs. Therefore, directing the Election Commission to deregister a political party or to refuse renewal of a political party or to not register a political party if they associate themselves with persons charged with offences would amount doing indirectly what is clearly prohibited under the Constitution of India and the Representation of the People Act. Attorney General KK Venugopal also cautioned the top court against breaching the boundaries of separation of powers.

However, empirical evidence (see box) supports the view that the current legislative framework is not sufficient to check criminalisation of Indian politics which violates the voter’s right to choose freely and amounts to a subversion of democracy and Rule of Law.

The Supreme Court, which has been judicially enforcing electoral reforms aimed at de-criminalisation of politics for the past 15 years, has chosen to beat a retreat from its activist role. “Though criminalisation in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law,” said the top court.

Having been criticised by the Legislature and the Executive for judicial overreach, the top court has put the ball in the court of the lawmakers to bring out a strong law, which “would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.”

While noting that criminals have to be “kept at bay,” the top court said, “We are sure, the law making wing of the democracy…will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy.”

Will the political class take up the gauntlet? Only time will tell.

Activism by apex court

Displaying judicial restraint, the Supreme Court on September 25 refrained from debarring politicians facing serious criminal charges from contesting polls. It left it to Parliament to enact a law to rid Indian politics of criminals. But here are some of the directions issued by the top court on electoral reforms and de-criminalisation of Indian politics:

March 2003: A voter has a fundamental right to know candidates’ qualifications, assets, liabilities and criminal antecedents, if any.

July 5, 2013: Freebies promised by political parties in poll manifestos vitiate the electoral process; asks EC to frame guidelines to check it in consultation of political parties.

July 10, 2013: An MP/MLA convicted of any offence attracting a punishment of two years or above will be disqualified immediately. Section 8(4) of the Representation of the People Act that allowed a convicted MP/MLA to continue in office if he/she appealed in a higher court within three months of conviction declared unconstitutional.

September 13, 2013: Knowing about a candidate is the voter's natural right in a democracy, and non- disclosure of information by a contestant in his/her affidavit, leaving the relevant columns blank, will result in rejection of the nomination

September 27, 2013: Top court gives to Indian voters the option of none of the above (NOTA) in EVMs.

February 5, 2015: A legislator’s election can be declared “null and void” for non-disclosure of his/her criminal antecedents as it created an impediment in the free exercise of electoral right.

January 2, 2017: Election is a secular process and if votes are sought in the name of religion, race, caste, community or language of a candidate, his agent or that of voters it would amount to corrupt practice – a ground to set aside elections.

December 14, 2017: SC directs the Centre to set up 12 special courts to exclusively deal with cases involving politicians.

Lawmakers or breakers? 

• In the current Lok Sabha, 30 per cent or 162 sitting MPs have criminal cases pending against them, of which about half, i.e., 76 have serious criminal cases
• Prevalence of MPs with criminal cases pending has increased over the years. In 2004, 24 per cent of Lok Sabha MPs had criminal cases pending which increased to 30 per cent in the 2009 elections.
• Situation is similar across states with 31 per cent or 1,258 out of 4,032 sitting MLAs with pending cases, with again about half being serious cases. 
• Some states have a much higher percentage of MLAs with criminal records. In Uttar Pradesh, 47 per cent of MLAs have criminal cases pending and a number of these MPs and MLAs have been accused of multiple counts of criminal charges
• In a constituency in Uttar Pradesh, the MLA has 36 criminal cases pending, including 14 cases relating to murder.