Why in News?
- A February 2020 Supreme Court judgment on criminalisation in politics may have farreaching consequences for Indian democracy. It will first be implemented in the coming Bihar elections in October 2020. The Court has asked the political parties to state “the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.”
- We are in the midst of more immediate crises — the COVID-19 outbreak, the economic recession due to the lockdown, the migrant workers crisis, small businesses shutting down in many sectors, massive unemployment, a highly stressed banking and financial sector, and now the conflict with China. Added to this is an ever-present silent crisis: the steady deterioration in politics over decades, with the decline accelerating in the past 16 years. As politics dominates the bureaucracy, and reins in business, civil society and the media, we need governance that is free of the “criminal” virus. Capability is not sufficient. The intent to do public service is also required.
- The Vohra Committee on “Criminalisation of Politics” was constituted with an objective to identify the extent of the politicalcriminal nexus and to recommend ways in which the criminalisation of politics can be effectively dealt with. Official agencies in the report made several observations on the criminal network which had virtually been running a parallel government. The Report of the Vohra Committee also discussed how the criminal gangs enjoyed the support of politicians and protection they were being provided from the government functionaries. The report revealed how political leaders have become gang leaders. Over the years criminals have been elected to Parliament, State Assemblies, and local bodies.
- It is pertinent to note, criminalisation has increased at an alarming rate. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019, as many as 43% of MPs had criminal cases pending against them.
Supreme Court Judgement
- The Supreme Court bench of justices R.F. Nariman and S. Ravindra Bhat on 13th February 2020 ordered the political parties to publish criminal antecedents of their candidates for the Legislative Assembly and Lok Sabha elections.
- The order said that a detailed reason within 48 hours of the selection of the candidates should be published by the parties as to what made them choose the candidates having criminal records over other candidates.
- Information to be disclosed
- The crime that the candidate is accused of;
- How many cases and what kind of cases are charged against the candidate?
- Details of the case, case number and name of Court;
- At which stage the criminal case has reached – FIR or investigation or charge-sheet or trial;
- Why can not the other individuals without any criminal antecedents cannot be selected as candidates?
- “Winnability” cannot be the only reason for the selection of the candidate.
- The information must be uploaded on:
- social media platforms like Facebook and Twitter;
- one national newspaper’
- website of the party;
- one local vernacular newspaper; and
- As of today, the political parties do not offer any explanation as to why the people with pending criminal cases are selected as candidates for contesting elections when they have a choice.
- Contempt of Court:
- A report of compliance shall be submitted by the concerned political party in compliance with the directions to the election commission within 72hrs of the said candidate.
- If there is a failure on the part of the political party to submit this compliance report, then the Election Commission shall report such non-compliance by the concerned political party to the Supreme Court as being Contempt of the Court order.
- Enforcement of decrees and orders and Contempt of Supreme Court is dealt under Article 129 and Article 142 of the Constitution of India.
- The case of Court contempt will be filed against the party president.
Concerns for the Judgement
- The most recent directive of the Supreme Court assumes relevance in light of the report that more than half the new elected legislators of the Aam Aadmi Party (AAP) in Delhi have serious criminal cases pending against them. What is likely to be the impact of the latest court directions? Four linked factors would need to be considered in this context.
- First, who defines the threshold on what constitutes a serious criminal charge? The law is clear on debarring someone convicted in a criminal case from continuing as an elected representative or from contesting for such positions. How serious should a charge be to be considered serious when it comes to a case filed against someone who is seeking to contest elections? Political parties and leaders would argue that it is not difficult for a potential opponent or rival to file a case against a likely candidate. Should the seriousness of the case be defined in terms of prima facie evidence?
- Second, does the solution lie in ensuring greater visibility to the criminal cases against a candidate contesting an election? Every candidate contesting an assembly or Lok Sabha election is required to file an affidavit listing the cases pending against them. The contents of this affidavit are often highlighted by civil society groups through the media and during the election campaigns. While this exposure has to a certain extent embarrassed political parties and candidates, there is little empirical proof that it has reduced their chances of winning an election. Once again, if one were to go by experience, there is little proof of this. The Delhi results are the most recent evidence of this.
- Third, is the crucial question of winnability versus credibility and merit. The court directives seek to alert political parties to the fact that winnability cannot trump factors such as the integrity and public standing of candidates who contest elections. Surveys have often found that there is considerable support for candidates who may not be honest but can get your job done as compared to those who are honest but cannot get your job done.
- Finally, is judicial activism the permanent answer to executive inertia? Should the judiciary be constantly directing the executive to take action, which it anyway should as part of its routine functions? We clearly need a strong legislation to regulate the functioning of political parties and an unbiased and independent authority to implement it. We seem to be taking recourse to judicial activism far too often and making it more the exception than the rule.
Laws Related to Criminalisation of Politics
- It is stated in the Section 4A of the Conduct of Election Rules, 1961 that an affidavit must be filed by each candidate. The affidavit should consist of:
- If in any case the candidate has been accused of an offence that is punishable with two or more imprisonment, in any pending case in which the charges have been framed by the court.
- The cases where a conviction for an offence is involved other than an offence that has been mentioned under Section 8, Representation of the People Act, 1951, (RP Act, 1951) and sentenced with imprisonment for one year or more.
- Pursuant to the order of the Supreme Court, in addition to this, on 27 March 2003, the Election Commission issued an order that an additional affidavit must be filed by the candidates stating that Section 125A of the RP Act which prescribes penalties for providing incorrect or withholding information on Form 26, this amounts to a maximum of six months imprisonment, or fine, or both.
- The Election Commission of India in the report entitled Proposed Electoral Reforms, 2004 noted that “in few cases, the candidates leave some of the columns blanks, there have been cases where the candidates are contended to have given grossly undervalued information.”
- The order of the Supreme Court should be taken in the right spirit and the government must consider steps for reducing criminalisation in politics. It is in the interest of purity of elections which forms the bedrock of our participatory democracy. A change must also come from the general public where they should boycott candidates with serious criminal antecedents. To this extent, awareness in public about the potential benefits which could accrue from choosing candidates without criminal antecedents visà-vis harm which they incur when they choose candidates with criminal antecedents would go a long way in ensuring the sanctity of our elections