This article is written by Sidharth Sharma who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

After the 2019 Lok Sabha elections, it was concluded in a survey by association of democratic reforms that nearly 43% of the newly elected members of the lower house have criminal cases against them. In the 2004 national election, the percentage of candidates with pending criminal cases was 24% which rose to 33% in 2009, 34% in 2014 and 43% in 2019. 

Thus, the increase in the member parliaments with criminal charges in these times will cause a strong impact among the faith of citizens of India in the democratic structure and its functioning mechanism. This can cause disastrous effects among the democratic spirit of the people and the faith they put up in the Constitution.

What is criminalisation of politics?

The Oxford dictionary defines the word criminalization as “the act or process of making something illegal”.

The criminalization of politics can have different notions and can be understood in different pretext but primarily it means the entering of criminals into politics. 

Causes of criminalisation of politics in India

There can be different causes of criminalisation of politics in India. In India, in most cases, there is a nexus between the criminals and the politicians. This connection can be due to the muscle power of the criminals in their areas and their influence over the people which can indeed prove to be a bliss upon the politicians when they go for the election campaigning to win and in return the criminals get immunity from prosecution and support from the administration to run their illegal works. This nexus can prove to be a ticket for the criminals to contest for the election.

The criminalization of politics can also be due to the lack of awareness of the people to choose their representatives and the lack of knowledge about the representatives due to which criminals are very often elected as MLAs and MPs. The use of caste and religion is very common in a country like India where we have people with different cultures, languages and religions.

Provisions in the Indian Constitution to uphold fair and free elections in India

Article 324 of the Indian Constitution grants powers to the Election Commission of India to direct and control free and fair elections in India. The powers of Superintendence have been vested in the Election Commission.

Article 325 of the Constitution ensures universal suffrage and provides that no person be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.

Article 102 of the Constitution sets grounds for disqualification of MPs whereas Article 191 sets out the same grounds for disqualification for member legislative assemblies.

The Representation of Peoples Act, 1951 also provides a legal framework for the conduct of elections in India. The key provisions of the act include allocation of seats in the House of the People and in the Legislative Assemblies and Legislative Councils of States. The Act also lays down procedures for electoral rolls and the manner of filling seats. There are provisions under ROPA for disqualification of candidates.

The President of India can also delimit constituencies but after consulting with the Election Commission of India.

In addition to all these, the Financial Bill of 2017 encompassed provisions which laid down that no party would receive an amount exceeding Rs. 2,000 per person as donation.

Reforms in the field of criminalisation of Indian politics by the courts

The landmark judgment which marked the beginning of a new era in the field of Indian politics was Union of India v. Association of Democratic Reforms where an NGO named association of democratic reform filed a petition in the Delhi High Court to compel implementation of certain recommendations regarding how to make the electoral process in India more fair, transparent and equitable. In this case, the Election Commission was directed to secure affidavits by the candidates relating to their criminal charges in exercise of its powers under Article 324 of the Constitution.

Whether the candidate is committed/acquitted or discharged of any offense punishable with an imprisonment of 2 years. It was also directed by the Hon’ble Supreme Court that the candidate should furnish all the details relating to the assets of the candidate including those of his/her spouse and the educational qualification of the candidate so that the details of the election candidate come out in the public and no one gets to stay in the dark.

After this judgment, the parliament had amended the Representation of Peoples Act. However, after the amendment, no candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities as it would be contradictory to Sec 33-B of the Representation of Peoples Act, 1951.

Peoples Union for Civil Liberties (PUCL) v Union of India & Ors. (2003)

In this case, an NGO named Peoples Union for Civil Liberties approached the Hon’ble Supreme Court to challenge Section 33-B of Representation of Peoples Act, 1951 and questioned the legality of the said provision. This section was added as an amendment in the Act after the Supreme Court verdict in Union of India v Association of Democratic Reforms.

The petitioner claimed this provision to be unconstitutional and thereafter filed a writ petition under Sec 32 before the Hon’ble Supreme Court. It was held by the court in its judgment that it is the will of the people which is paramount and becomes the basis of formation of the Government. The will is expressed in periodic elections based on universal Adult Suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. In furtherance, the SC reiterated that Section 19(1)(a) includes the right to know the basic information of the candidate. The freedom of voting for a candidate by voter is tantamount to expression of opinion of the voter thus carries with the complimentary and auxiliary rights such as right to secure information about the candidate as it is conducive to freedom.

It was thus concluded that Section 33-B of the Representation of Peoples Act, 1951 is unconstitutional as it stagnates the Right to Information by nullifying the effect of any order or judgment requiring the disclosure of information as it is imperative for non-violation of Article 19(1)(a). However, the Court observed that by not providing for disclosure of educational qualifications, it cannot be said that Article 19(1)(a) has been violated. Hence this averment was denied. 

Lily Thomas judgment (2013)

This case pertains to disqualification of MPs and MLAs from the Parliament. In this case provision, 8(4) of the Representation of Peoples Act was called into question. Section 8(4) provides that if a sitting member of the House is convicted for an offence which is punishable with 2 years punishment shall not be disqualified if he moves an appeal within 3 months of conviction. In this case, two petitions were filed in the Supreme Court, one by advocate Lily Thomas and the other by an NGO “Lok Prahari” through its general secretary S.N Shukla.

It was contended by the petitioner that Article 102(1) and 191(1) of the Constitution only provides for more disqualifications and does not exempt the sitting members from losing their membership when convicted. The Apex Court had applied the literal rule in this case and held that Art 101(3)(a) states that if a Member of Parliament has been debarred as a result of a provision passed under Article 102(1)(e), then the position of such member should thereon turn abandoned. Article 190(3)(a) states a similar point about Members of Legislative Assembly.

Thus, Section 8(4) of the Representation of Peoples Act had been declared as ultra vires to the Constitution, hence removed. 

Public Interest Foundation v Union of India (2018)

Issues – Whether any disqualification for membership of Parliament can be laid down by the court beyond Article 102(a) to (d) and the law made by the Parliament under Article 102(e)?

The petitioners suggested that the Court may direct the Election Commission to restrain political parties from granting tickets to or accepting support from independent candidates with criminal antecedents. This matter was referred to a constitutional bench. The Supreme Court held that separation of power is a basic principle of the Constitution and making laws for disqualification would be in violation of such principle. However, the Supreme Court issued directions by exercising its powers under Articles 129 and 142 of the Constitution. These were as follows:

1. Contesting candidates have to fill up a form provided by the election Commission containing all the necessary particulars. 
2. The criminal cases pending against the candidate have to be stated clearly in the form in bold letters.
3. The candidate if contesting on the ticket of a particular party, then he or she has to inform about the pending criminal cases to the party he belongs to. 
4. The political party must put every such detail and information about the pending criminal cases of its members on its official website. 
5. The candidate and the particular political party which the candidate belongs to shall issue a declaration in the most widely circulated newspaper in the locality about such antecedents of the candidate. They shall also give publicity in the electronic media i.e. the same shall be done at least thrice after filing the nomination paper.

Rambabu Singh Thakur v Sunil Arora (2020)

A contempt petition was filed before the SC regarding the criminalization of politics and bringing attention to the complete disregard of the Apex Court’s directions in Public Interest Foundation v. Union of India. In this case the court issues directions.

1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
3. Candidate contesting election from the ticket of a particular party has to inform the party about the criminal cases pending against him.
4. The political party has to put up the information regarding criminal antecedents of its candidate on their official website.
5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. 

Reformative steps taken by Election Commission of India

• Mandatory declaration of assets.
• Election Commission of India has demanded more independence and Financial Autonomy from Government Control to have more free hand over the Criminalizing Activities in politics.

Measures to be adopted to solve criminalisation of politics

1. Separate audit committees should be required to be set up as a prerequisite by the parties in order to create transparency as to the funding of the parties.
2. Representation of Peoples Act, 1951 should be amended and there should be stricter laws against serious offenders.
3. Fast track courts should be established for dealing with these cases.
4. Anti-Defection laws should be made more strict.

Conclusion

More autonomy should be provided to the Election Commission of India and powers to impose punitive sanctions should be granted as the courts alone cannot carve out and impose the provisions. The bureaucracy should act more proactively in shattering the political-corporate nexus. The party heads should ensure transparency between the people and the party and should improve the inner-party democracy.

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