Context: SC verdict on criminialisation of politics.
More in news:
- A two Judge Bench of Supreme Court recently delivered a Judgment on the contempt petitions regarding the criminalisation of politics in India.
Criminalisation of politics in India:
- Criminalization of politics means the rising participation of criminals and people facing criminal charges in politics. The term indicates people with criminal backgrounds becoming politicians and elected representatives.
- It has been observed that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics.
- 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 verdict of 13th February 2020:
The court passed orders on a contempt plea which raised the issue of criminalisation of politics claiming that directions given by the apex court in its September 2018 verdict relating to disclosure of criminal antecedents by candidates are not being followed.
The Court issued the following directions in exercise of our constitutional powers under Articles 129 and 142 of the Constitution of India:
- All the political parties must upload details of criminal cases against candidates on their websites, newspaper and social media platforms.
- A party must clarify the reasons for fielding a particular candidate. It added that nominees must be selected on the basis of merit. “The reason to select candidates should be based on merit and not winnability”.
- The details of criminial record shall be published within 48 hours of the selection of the candidate or atleast two weeks before the first date for filing of nominations.
- The court said political parties will be liable for contempt if they fail to comply with the order. It asked the Election Commission to file contempt petition in Supreme Court if political parties do not follow the order.
Reasons of criminalization of Politics:
- Vote bank Politics: Money and muscle power of criminals help political parties gain votes. Since, in India electoral politics is more about caste, ethnicity, religion and several other factors, candidates overcome the reputational loss due to criminal charges and come out as victorious in elections.
- Black money in elections: Electoral politics is largely dependent on the money and the funding that it receives. Since candidates with criminal records often possess greater wealth, they ensure greater inflow in money, labour and other advantages that may help a party in successful campaign, and also possess greater ‘winnability’.
- Lack of Intra-party democracy: Political parties in India largely lack intra-party democracy and the decisions on candidature are largely taken by the elite leadership of the party. Thus, the politicians with criminal records often escape the scrutiny by local workers and organisation of the party.
- Lack of adequate deterrence: Due to the low levels of convictions of MPs and MLAs, and delays in trials political parties are not deterred from giving tickets to criminals.
- First Past the Post (FPTP) electoral system:
- FPTP electoral system allows a candidate to be declared elected from the constituency on the basis of plurality of votes polled and not on the majority of votes polled.
- Thus, a candidate with as low as 25-30% of valid votes polled may get elected. Criminals do not find difficult to secure the votes because of the use of their money and muscle power.
- Loopholes in the functioning of Election Commission: The Election Commission has prescribed forms for the contestants of elections to disclose their property details, cases pending in courts, convictions etc. while filing their nomination papers. However, these steps have not been stringent enough to break the nexus between crime and politics.
- Civil society in India has failed to check criminalization of politics due to resistance from establishment, prevalent use of money and muscle power and lack of voter awareness
- Lack of ethics and values in Indian politics further accentuates the problem of criminalization. The political parties have been reluctant in checking criminalization for own vested interests.
Other judgements by SC on issue of criminalisation of politics:
- In Union of India (UOI) v. Association for Democratic Reforms and Anr, 2002, the SC held that that every candidate, contesting an election to the Parliament, State Legislatures or Municipal Corporation, has to declare their criminal records, financial records and educational qualifications along with their nomination paper.
- In Ramesh Dalal vs. Union of India, 2005, the SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.
- In Lily Thomas v. Union of India, 2013, the SC held that that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. The court held that MP/MLA convicted for two years or above would be disqualified immediately.
- In 2017, the Central Government informed SC that lawmakers convicted in any criminal case would not stand automatically disqualified. A convicted lawmaker may move the appellate court to get the conviction stayed thus allowing him or her to continue.
- In Krishnamurthy v. Sivakumar & Ors., 2015, the SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidate at the time of filing of nomination paper as mandated by law was a categorically imperative.
- In Public Interest Foundation & Others Vs Union of India, 2018, left the matter of disqualification of politicians carrying criminal charges against them, to the Parliament saying that the court cannot add to the grounds of disqualification.
Directions issued in 2018:
- While filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters.
- Political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites.
- Candidate and the concerned political party will have to issue a declaration in widely circulated newspapers in the locality and in electronic media about his or her criminal antecedents
- Parliament must legislate on the matter to ensure that candidates with criminal antecedents do not enter public life or become lawmakers
Election Commission’s views:
- EC expressing its views told the court that increase in the number of MPs having pending criminal cases was “disturbing” and as per the statistics, there were 43 per cent MPs in Parliament who have criminal cases against them.
- The Election Commission has also agreed with the suggestion that political parties may be asked to furnish details on its website regarding criminal antecedents of candidates and give reasons as to why he or she has been given the ticket.
- However, the EC had said it was not agreeable to the suggestion regarding penalising the political party or its candidates under Article 324 of the Constitution for their failure to disclose criminal antecedents, as it does not have this power.
- Acting on the previous recommendation of SC (2018), the EC had issued the notification regarding the amended Form-26 and directions to political parties and candidates for publication of criminal antecedents.
- Election Commission Recommendations: The Election Commission in its “Proposed Electoral Reforms” (2016) recommended that persons charged with cognizable offences should be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is led at least 6 months prior to the election in question.
- 2nd ARC Recommendations: The Second Administrative Reforms Commission in its fourth report on Ethics in Governance (2008) made the following recommendations:
- Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, where charges have been framed six months before the election.
- It also supported the proposal of including filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950.
- The Law Commission in its 244th report on Electoral Reforms titled “Electoral disqualifications” had put forward recommendations on de-criminalization of politics. The main recommendations include:
- Expediting trials in relevant courts where a case is led against a sitting MP/MLA and to conduct the trial on a day-to-day basis with an outer limit of completing the trial in one year.
- Retroactive application- from the date the proposed amendments come into effect, all persons with criminal charges (punishable by more than five years) pending on that date are liable to be disqualified subject to certain safeguards.
- The punishment for filing false affidavits under Section 125A is increased to a minimum of two years, and that the alternate clause for shall be removed.
- Conviction under Section 125A should be made a ground for disqualification under Section 8(1) of the RPA, 1951.
- The filing of false affidavits should be made a corrupt practice under Section 123 of the RPA.
- The Election Commission must take adequate measures to break the nexus between the criminals and the politicians. The most important step in this direction would be checking the use of black money in party and election funding.
- Intra-party democracy should be strengthened for better scrutiny and selection of candidates.
- A strong political will is required on the part of government to decriminalize the entire political system by enactment of required legislations and taking adequate measures.
- Politics can only be decriminalized through larger public awareness and public participation in elections, politics and governance. Further, electoral process should be made more inclusive through wider participation from all sections of the society