This article is written by Kritika Garg, from National Law University, Odisha. This is an exhaustive article which deals with the right of the voters to know about criminal contestants.

Introduction

In February 2020, the Apex Court passed a landmark judgement in the case of Public Interest Foundation v. Union of India, directing all the political parties to publish the criminal record of the contesting candidates along with the reasons for fielding each one of those candidates apart from the reason of their winnability. Further, the Election Commission of India issued directives for the implementation of the Supreme Court’s judgement. 

The judgement is not only a step towards bringing transparency in politics, but it is also a step towards uplifting the right of the general public to know about the criminal antecedents of the candidates who are contesting the elections and also representing them in the Parliament and the State Assemblies.

Criminalisation of politics

The criminalisation of politics has been a major issue in our country. Various committees have published various reports which have specifically highlighted the issue of growing criminalisation in Indian politics. Candidates with accusations of serious criminal offences like offences of murder, rape, kidnapping, etc. have been contesting elections and representing the general public in the Parliament or the State Assemblies. In 1990, the Goswami Committee on Electoral Reforms first addressed the rising issue of criminalisation in politics. Further, in 1993, the Vohra Committee in its report addressed the issue of the criminal network which is running a parallel government. The report revealed information about certain criminal groups which carry out criminal activities through political parties and government functionaries. Further, the report focused upon the fact that in the past few years candidates with criminal charges against them are elected in the Parliament and State Assemblies.

In 2007, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on Electoral reforms presented its 18th report before the Rajya Sabha in which the committee acknowledged the presence of a close nexus between the politicians and the criminal elements which is hitting the roots of the Indian Polity. 

The Association for Democratic Reforms (ADR) which was established in 1999 has been conducting a detailed study along with the National Election Watch on the backgrounds of the candidates contesting elections. Recently, in the year 2019, the ADR released a detailed report on the Lok Sabha Election titled ‘Analysis of Criminal Background, Financial, Education, Gender and other details of Winners’. The report had a detailed analysis of the background of the winning candidates of the past three Lok Sabha elections. 

Lok Sabha Elections 2019 

The report of the 2019 Lok Sabha Elections revealed that out of 539 winning candidates, 233 candidates, i.e. 43% had criminal cases against them. Further, 159 of the 43% had some serious criminal cases including cases relating to rape, murder, kidnapping, etc. 

The more shocking data of 2019 elections was the chance of winning the elections of the candidate with criminal charges which was 15.5% whereas it was only 4.7% for the candidates with a clean record. 

Lok Sabha Elections 2014

In the Lok Sabha Elections of 2014, 185 winning candidates out of 542 had criminal charges against them. Out of 185 candidates, 112 candidates had some serious criminal cases including cases relating to rape, murder, communal disharmony, etc. Further, the winning chances of candidates with criminal charges were 13% whereas it was only 5% for the candidates with no criminal record.

Lok Sabha Elections 2009

Similarly, in Lok Sabha Elections of 2009, 158 candidates out of 521 winning candidates had criminal cases against themselves. Out of 158 candidates, 77 candidates had some serious criminal cases including cases relating to Kidnapping, communal disharmony, rape, murder, etc.

Disqualification of the candidates

A candidate who has been convicted for a criminal offence punishable under Section 153A, 171E, 171F, 376, 376A, 376B, 376C, 376D, 498A, or Section 505 of the Indian Penal Code, 1860 is disqualified from contesting elections for the membership of the Parliament or State Assemblies under Section 8 of the Representation of People’s Act, 1951. 

Further, in 1999, the 170th Commission Report on Electoral Reforms suggested the inclusion of Section 4A in the Representation of the People’s Act which stated that a candidate shall be disqualified from contesting election unless he/she files an affidavit disclosing his/her assets along with the information of criminal charges framed against him/her (if any). 

The suggestion was further presented by the Association of Democratic Reform before the apex court in 2002 for its implementation. It was decided that filing of an affidavit by candidates is essential, failure to which would be deemed as incomplete nomination within Section 33(1) of the Representation of People’s Act. Thus, it would lead to the rejection of the nomination of the candidate. However, the inclusion of Section 33A and Section 33B in the RPA in 2002 reversed the requirement of disclosure of information about the assets by the candidate as the sections together stated that candidates contesting elections shall not be liable to disclose any information other than their criminal history. 

The apex court, then, in 2003 struck down Section 33B of RPA making it mandatory for the candidates to disclose information about their assets, education qualification and their criminal antecedents.

However, perjury became another major issue where the candidates started furnishing false information in their affidavits. The Election Commission’s Report on Electoral disqualification also pointed out that while the judgement of the apex court in the case of People’s Union for Civil Liberties v. Union of India mandates it for the candidates to disclose their information in the affidavit, it fails to deal with the issue of perjury and the steps to be taken in case of filing of false information. The Election Commission, based on the report, held its directive of rejecting the nomination due to lack of affidavit as invalid. However, the Election Commission directed that in case of furnishing of false information, the candidate shall be prosecuted under Section 125A of the RPA. But since Section 125A of the RPA is not included under Section 8 of the RPA (which states the offences under which a candidate is disqualified from contesting elections) the candidate is not disqualified from contesting elections. 

The issue of furnishing false information was called into question before the judiciary multiple times in the cases of Nand Ram Bagri v. Jai Kishan (2013), Arun Dattaray Sawant v. Kishan Shankar Rathore (2014), Krishnamoorthy v. Siva Kumar (2015), etc. 

Through these judgements, it was held that in case of omission of information by the candidate in the affidavit, the nomination shall stand rejected. Further, in case of false information, the candidate shall be prosecuted under Section 125A of the RPA and punishment of a maximum of 6 months or fine can be furnished with his/her nomination remaining unaffected. 

Landmark Judgements

• Association for Democratic Reforms v. Union of India (2002) 

This is a landmark judgement of 2002 wherein the apex court held that the filing of affidavits by candidates is a right of the voters. The voters have a right to information under Article 19(1)(a) including the right to know the assets and the criminal history of the candidates contesting elections. The apex court further directed the Election Commission to call for information on an affidavit from candidates contesting Parliamentary or State elections as an essential document of the nomination papers. The candidate seeking elections has to answer whether he/she has been convicted/acquitted/discharged of any criminal offence in the past and whether the candidate is accused of any pending criminal offence punishable with an imprisonment of minimum 2 years.     

• People’s Union for Civil Liberties v. Union of India (2003)

This is a landmark judgement of 2003 in which the apex court reiterated the right of the voters to know about relevant information about the candidates contesting elections. Further, Section 33B of the Representation of People’s Act, 2002 which states that a candidate cannot be forced to disclose any information other than the criminal record, was held unconstitutional. The Section was held unconstitutional because it placed a blanket ban on dissemination of information without paying any heed to the need of the hour. 

• Public Interest Foundation v. Union of India (2018)

It is a judgement of 2018 in which the apex court held that disqualification of candidates from contesting elections on the basis of their criminal history or disqualification of candidates with criminal charges against them is not possible. Therefore, it was recommended to the Parliament that it shall formulate such laws which could curb the issue of criminalisation in politics. Further, the apex court issued directives for the Election Commission of India under which the political parties were mandated to publish information of candidates with criminal charges on the website, newspaper or through television prior to elections. The information requires to be published within 48 hours of selection of the candidate or before two weeks of the date of filing on the nomination, whichever is earlier. This would ensure transparency about the candidates and the parties before the voters.

• Public Interest Foundation v. Union of India (2020)

It is a landmark case of 2020 wherein several petitions were filed against the Election Commission of India for overlooking the directives issued by the apex court in its judgement in the case of Public Interest Foundation v. Union of India (2018) by not monitoring the parties if they are publishing the information or not. 

The court reiterated its previous decision and directed the Election Commission to comply with the directives and to ensure that the parties are also complying with the same. Further, the apex court added another directive which stated that the political parties require to provide reasons for fielding candidates with criminal cases for contesting elections apart from the reason of their winnability.

Major flaws

While efforts have been made to bring accountability and transparency in Indian politics, Section 125A of the RPA- which provides for prosecution of candidates for furnishing false information in the affidavits, still remains in blue. The requests of including Section 125A under Section 8 of the RPA remained unanswered by the court. Instead, the court recommended the Parliament to formulate laws to prevent the criminalisation of politics. Further, the court has issued directives to the Election Commission and the parties to publish information about the candidates via social media, newspaper or television, however, no defined parameters have been set to ensure that the directives are being followed. Therefore, even after certain landmark rulings, the problem of the criminalisation of politics has not been addressed and solved completely.

Conclusion

The apex court has time and again reiterated the significance of the right to know of the voters through its various judgements. Being a fundamental right, voters have a right to know about the candidate who might become their representative in the Parliament or the State Assemblies. Further, the directive issued by the apex court in its various judgements has not only mandated the parties to mention the criminal past of their candidates, but it has also mandated the parties to give reasons behind the fielding of a candidate who has criminal charges against him. 

However, there is a common thread which is followed by all the political parties in their forms which states the reason for the nomination of a candidate to be the seniority, experience and dedication of the candidate. Further, the reason behind the preference given to a candidate with criminal charges over the candidate with a clear record is the edge that the candidate has over others and that the charges being alleged against him have no substance and are driven by a vindictive approach. The parties clearly state that the criminal case framed against their members is politically driven for the fulfilment of personal vendetta by the opposite political parties. Further, since a candidate cannot be disqualified from contesting elections on the grounds of furnishing false statements in the affidavit, candidates misuse this aspect and make submissions which are either incomplete or false. Prosecution of the candidate for furnishing false statements under Section 125A of the RPA is possible only when a complaint is received against the candidate and that too does not affect the nomination or election of the candidate. Therefore, in order to resolve the issue of the criminalisation in politics and to provide the Right to Know to the voters, it is essential to ensure that the candidates furnish correct information in the affidavits and the parties are transparent about the information of their members. 

References

• https://www.livelaw.in/columns/the-right-to-know-about-criminal-contestants-143828
• https://factly.in/voters-right-to-know-trajectory-of-law-on-the-disclosure-of-candidates-criminal-antecedents/
• http://www.lawcommissionofindia.nic.in/lc170.htm
• https://adrindia.org/content/lok-sabha-elections-2019-analysis-criminal-background-financial-education-gender-and-other
• https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf
• https://adrindia.org/sites/default/files/VOHRA%20COMMITTEE%20REPORT_0.pdf

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