This article is written by Ms Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. It discusses notable court decisions, important studies on election reforms, and ongoing challenges to India’s rising criminalization of politics.
Democratic elections are thought to be critical in reducing corruption among government officials. Because the public disliked corruption, voters are likely to punish politicians who use public office for personal benefit. However, the actual evidence to date is contradictory, and it frequently shows that the electoral penalty for corruption is quite moderate. If voters do not punish corrupt politicians, it is often assumed that this is due to the institutional systems in which voters live.
The Association for Democratic Reforms (ADR), which was founded in 1999, has been researching the backgrounds of individuals running for office. In partnership with the National Election Watch, ADR has conducted election watches for practically all state and parliament elections. The trend in victors with stated criminal charges has been noted for three consecutive Lok Sabha elections, according to ADR’s study for the Lok Sabha 2019 elections, titled “Analysis of Criminal Background, Financial, Education, Gender, and Other Details of Winners.”
Political parties have been ordered to publish criminal antecedents of contesting candidates, along with reasons for fielding each of these candidates, despite their “winnability,” according to a recent Supreme Court (SC) judgment in Public Interest Foundation v. Union Of India (2018). The Election Commission of India (ECI) has also issued a directive to carry with the Supreme Court’s directives regarding candidates’ criminal records. While the ruling is a step toward guaranteeing political accountability and transparency, the Supreme Court has given similar orders in the past few years. In this article, the author will be discussing the loopholes in the existing framework and the role played by the judiciary in decriminalisation of politics.
Top tier politicians and their federal crimes – an insight
Data on the criminalisation of Politics
As per the data, as reported by Association for Democratic Reforms (ADR), the following are the statistics on the criminalisation of politics:
- Lok Sabha 2019: Of the 539 winners examined for the Lok Sabha 2019, 233 (43%) have filed criminal charges against themselves. 159 (29%) of the winners have disclosed significant criminal charges, such as rape, murder, attempted murder, kidnapping, and crimes against women, among others. In the Lok Sabha 2019 elections, a candidate with a criminal record had a 15.5 per cent probability of winning, while a candidate with a clean record had a 4.7 per cent chance.
- Lok Sabha 2014: 185 (34%) of the 542 winners examined at the Lok Sabha 2014 elections have filed criminal charges against themselves. Serious criminal cases were declared by 112 (21%) of the winners, including murder, attempted murder, community strife, kidnapping, and crimes against women. In the Lok Sabha 2014 elections, a candidate with a criminal record had a 13% probability of winning, while a candidate with a clean record had a 5% chance.
- Lok Sabha 2009: Of the 521 winners examined at the 2009 Lok Sabha elections, 158 (30%) have filed criminal charges against themselves. 77 victors (15%) had filed serious criminal charges against themselves.
Visualizing corruption as the roots of all crimes
Several committee studies over the previous few decades have also highlighted the growing criminalization of Indian politics and its consequences such as a major increase in corruption in the Nation. Beginning with the Goswami Committee on Electoral Reforms (1990), which addressed the need to rein in the expanding criminal elements in politics, the Vohra Committee Report (1993) highlights several frightening and extremely troubling tendencies. It alluded to several official reports, including those from the CBI, IB, and RAW, all of which unanimously expressed their views on the criminal network that was effectively running a parallel government. The Committee was also interested in criminal gangs that operated under the aegis of various political parties and government officials. The Committee was also concerned by the fact that some offenders had been elected to local councils, state assemblies, and the Parliament in recent years.
The courts have also recognized on several occasions that the relationship between politicians, bureaucrats, and criminal elements in our society is growing, with negative consequences that are increasingly being felt in India’s numerous facets of social life. The Parliamentary Standing Committee on Personnel, Public Grievances on Law and Justice acknowledged the existence of criminal elements in Indian politics in its 18th Report on Electoral Reforms, which was delivered to the Rajya Sabha on March 15, 2007.
Loopholes in the existing legal framework that outlooks federal crimes by top tier politicians
What determines electoral disqualifications
Section 8 of the Representation of People Act of 1951 (RPA) establishes standards for disqualifying candidates for membership in Parliament and state legislatures. The Section goes into detail on the requirements for disqualification if a candidate has been convicted of specific crimes including corruption, rape, or terrorism.
Disclosure of Information
The 170th Law Commission Report on electoral reforms was the first to propose the addition of Section 4(a) of the Representation of the People Act, 1951, requiring that a person be ineligible to contest elections unless they file an affidavit declaring their assets and a declaration that no criminal charges have been filed against them.
In the year 2002, The Association for Democratic Reforms petitioned the Supreme Court, among other things, to have the aforementioned recommendation enacted. The decision established the power of voters to file affidavits against candidates. The Supreme Court ruled that under Article 19(1)(a), the Constitution of India, the right to information – the right to know about a candidate’s antecedents, including criminal history or assets – is a basic right, and that access to information is essential for democracy’s survival. It directed the Election Commission to request information on an affidavit from each candidate seeking election to Parliament or the State Legislature as a required part of the nomination papers on whether the candidate has been convicted, acquitted or discharged of any criminal offence in the past – if any; and whether the candidate has been accused in any pending case of any offences punishable with imprisonment.
The RPA was changed later that year to include Sections 33A and 33B. Both sections implied that no candidate would be required to reveal any information other than their criminal history. In other words, the Supreme Court’s orders demanding further asset disclosure and educational criteria were overturned by this modification. In the case of PUCL v. Union of India (2003), Section 33B was declared unconstitutional because it imposed a blanket restriction on the distribution of information. Candidates were now required to provide information on any pending cases in which a court had taken cognizance, as well as their assets and liabilities and educational qualifications.
False information filled in the candidacy form
Even if proven under Section 125A, filing incorrect information is not grounds for annulment of the election or further disqualification. Nand Ram Bagri v. Jai Kishan (2013), Arun Dattaray Sawant v. Kishan Shankar Rathore (2014), and Krishnamoorthy v. Siva Kumar (2015) were among the cases in which this issue was raised. From these judgments, we can conclude some brief points:
- If details are omitted in the nomination documents, the nomination should be denied.
- Prosecution under Section 125A is feasible if the information is judged to be incorrect, although the repercussions of conviction are uncertain. While the Bombay High Court in Arun Dattaray Sawant holds that filing a fraudulent affidavit is a reason for the election to be annulled, other High Courts disagree. False affidavits can thus result in a maximum of six months in prison and fine, with no effect on the election result or the candidate’s right to run in future elections.
This reduces the usefulness of candidate disclosures because candidates have no incentive to give truthful information due to the lack of penalties. The EC has also noted that candidates have consistently neglected to provide information, or have provided information that is severely devalued, such as the worth of their assets.
Major Supreme Court judgments
The Election Commission was given the following five “directions” in the 2018 judgment that did not influence the Supreme Court of India:
- A candidate must complete the required paperwork.
- The candidate must state in large characters that he has been charged with a felony.
- The candidate must inform his political party if he is charged with a felony.
- When a political party receives information about a candidate’s criminal history, it must post it on its website.
- The candidate’s and his party’s criminal histories should be made public in newspapers that are extensively circulated in the area. Within 48 hours of a candidate’s selection or two weeks before the first deadline for filing nominations, the information must be publicized in a local and national newspaper, as well as on the parties’ social media pages.
It’s worth noting that the petitioner’s second request, for Section 125A to be brought under the purview of Section 8 of the RPA, was denied by the Court in the 2018 decision. To put it another way, candidates who file false affidavits will be automatically disqualified. The Court dismissed the petition, citing the separation of powers, and recommended that the parliament pass legislation prohibiting candidates suspected of major crimes from running for office.
While candidates have been required to submit details of their criminal cases to the poll panel via an affidavit since the 2002 ruling, the 2018 ruling broadens the scope by requiring this material to be published on party websites, newspapers, and television channels.
The only new provision in the current 2020 judgment is that political parties must now declare reasons for fielding candidates with criminal backgrounds other than “winnability.” While the goal is to force political parties to be more accountable, the 2020 decision adds little to the pool of information already available and allows for vague and generalized explanations.
However, neither the judgment nor the EC specified how the publishing of information will be regulated or ensured to be followed to the letter. Due to the lack of well-defined conditions to assure compliance, the enforcement of such orders by the apex court has remained a complicated issue. It’s debatable if political parties will make their candidates’ criminal records public on their websites, local and national newspapers, and social media profiles.
Situation after the 2018 & 2020 judgment
According to a report produced by the Association for Democratic Reforms, 68% of newly elected Bihar MLAs had pending criminal accusations, with 51% having announced serious cases against themselves, including rape and murder (ADR).
The Supreme Court’s orders did not influence any political parties’ candidate selection in the Tamil Nadu Assembly elections in 2021, as they continued to maintain their traditional practice of offering tickets to politicians with criminal charges. According to the report, “Tamil Nadu Assembly Election 2021 Analysis of Criminal Background, Financial, Education, Gender, and Other Details of Winning Candidates,” 57 of the 224 candidates whose affidavits were examined have major criminal convictions against them, accounting for 25% of the candidates. The state elected 42 MLAs with major criminal charges in the recent elections, accounting for 19% of all candidates.
According to the ADR report, 142 MLAs in the newly elected Bengal Assembly have filed criminal charges against themselves. This means that 49% of the winning candidates have been charged with a crime. There are 91 TMC MLAs, 50 BJP MLAs, and one independent candidate. 113 of the 142 winning candidates who had criminal charges against them have declared significant criminal cases against themselves, including murder, attempted murder, kidnapping, crimes against women, and offence.
The 2021 SC judgement on the decriminalisation of politics
On 10th August 2021, the Supreme Court of India in the case of Brajesh Singh vs. Sunil Arora (2021) delivered a very significant judgement regarding the decriminalisation of politics. This judgement has even modified the earlier 2018 and 2020 judgements which are discussed above.
The Supreme Court fined eight political parties for contempt of court for failing to follow the directives in its February 2020 judgment regarding the publishing of candidates’ criminal records during the Bihar assembly elections 2020.
Key observations made by the Supreme Court
- The law-making body should not consist of any candidate with the criminal antecedent.
- The Court observed that their hands are tied due to the Constitutional framework of separation of power. So they requested the legislature to carry out a major surgery for weeding out the malignancy of criminalisation in politics. However, all their past appeals to the legislative have also fallen on deaf ears only.
- The Court even acknowledged that the notion of a rival unjustly accusing someone as part of a political vengeance is not unheard of. Consider the case of a highly qualified candidate who has been unfairly implicated in criminal offences by his opponents. In contrast, a person with a spotless record who is completely unknown to the electorate in that area bids for a political party’s ticket. A political party can always claim that a candidate with a criminal history is more suitable than someone who does not have criminal antecedents in such a case. There could be a variety of reasons for this. If the political party believes that such a candidate has been falsely charged, it can say so.
- With respect to the suggestion by the petitioners to bar candidates with criminal antecedents from contesting elections, the Court observed that this Court will not be permitted to interpret any suggested limitations and issue directions that would imply a candidate’s disqualification as that would be against the constitutional framework.
Directions issued by the Supreme Court
- Political parties must post information on candidates’ criminal records on the homepage of their websites, making it easier for voters to access the information that must be provided. It will also be necessary to include a caption on the web page that reads “candidates with criminal antecedents.”
- The ECI has been asked to develop a specific mobile application incorporating information submitted by candidates regarding their criminal history so that any voter can access this information with a single tap on his or her phone.
- The ECI has been asked to conduct a comprehensive public awareness campaign to inform every voter about his right to know and the availability of information on all contesting candidates’ criminal backgrounds. This will be done on a variety of platforms, such as social media, websites, television commercials, prime-time debates, booklets, and so on. Within four weeks, a fund must be established for this purpose, into which fines for contempt of court may be directed to be paid.
- For the aforementioned purposes, the ECI is also directed to establish a separate cell that will monitor required compliances so that this Court can be informed promptly of any political party’s non-compliance with the directions contained in this Court’s Orders, as fleshed out by the ECI in instructions, letters, and circulars issued in this regard;
- It is clarified that the SC Order dated 13.02.2020 be updated and that the details that must be released must be published within 48 hours of the candidate’s selection and not more than two weeks before the first day for filing nominations.
- It is reiterated that if a political party fails to submit such a compliance report to the ECI, the ECI will bring such non-compliance to the attention of this Court as contempt of this Court’s Orders/Directions, which will be taken extremely seriously in the future.
Possible solutions for the loopholes in the system
These responses add little to the already-existing body of knowledge about the criminal backgrounds of contestants. The most serious issue of contending candidates submitting false and incomplete information is likely to improve when candidate information is made more widely available on numerous platforms. While the current judgment is a positive step toward greater accountability and openness, it does not address the need to reduce political criminalization and the ongoing problem of monitoring and compliance. There needs to be stricter legislation that governs. Significant efforts must be made to clean up the contaminated political stream by banning those with criminal backgrounds from even considering entering politics.
Political parties are likely to present generic arguments with little substance, contradicting the objective of these directives, based on recent experience. Despite the preceding instructions on “source of income,” most candidates stated general sources rather than identifying their true source of income. Parties and candidates even disobeyed orders not to publish pending criminal cases in publications and on television. As a result, these improvements will only be useful if the ECI keeps a close eye on things and all political parties follow the rules.
To summarize, candidates have been required to provide details of any outstanding criminal histories to the ECI since 2002. The Supreme Court’s decision in 2018 mandated that these facts be disclosed on the website of the relevant political party, as well as in newspapers and television stations. In the 2020 judgment, this was extended to include official social media outlets. But until and unless stricter regimes for disallowing the candidates with criminals are brought into action, our leaders will continue to have criminal records. The 2021 judgement has given us some hopes that there will be decriminalisation in politics but as said by the Court in this case the judiciary’s hands are tied and the legislature can only take the necessary steps.
- The Representation of the People Act