Criminalization of Politics & Judicial Scrutiny

"The money power is used to develop a network of muscle-power which is also used by the politicians during elections." - Vohra (Committee) Report (October 1993).

The criminalization of politics thus means the participation of criminals in politics which includes that criminals can contest in the elections and get elected as members of the Parliament and the State legislature.

Criminalization of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons.

Reasons for Criminalization:

1. Use of Muscle and Money Power: As is already stated in Vohra (Committee) Report (October 1993), the money power is used to develop a network of muscle-power. According to a research by Association for Democratic Reforms (ADR), the chances of winning for a candidate with criminal cases in the Lok Sabha 2014 elections were 13% whereas for a candidate with a clean record they were 5%.

2. Financial assistance in elections: Politicians get financial help from the criminals in elections; moreover, criminals are used in inciting violence, proxy voting, booth capturing, rigging, intimidation to the candidates and killing of party workers etc.  

3. Lack of Enforcement: Several laws and court judgments have not helped much, due to the lack of enforcement of laws and judgments.

4. Lack of Political Will: In this political fashion, persons with criminal background enter politics, get elected and become a part of law making authorities. This broadly works in two reciprocal ways: the politicians patronize criminals as they require muscle as well as money power and in turn criminals are ensured protections from the politicians. 

Thus, in spite of taking appropriate measures to amend the RPA Act, there has been an unsaid understanding among the political parties which deters Parliament to make strong law curbing criminalisation of politics.

IMPACTS OF CRIMINALIZATION OF POLITICS 

1. Against the Principle of Free and Fair Election: The Goswami Committee on Electoral Reforms (1990) had addressed the need to curb the growing criminal forces in politics in order to protect the democratic foundation of of our country. 

2. Law-breakers get elected as law-makers- This makes the Parliament less efficient in enacting necessary laws for the effective administration of country. The Parliament loses its credibility and the Council of Ministers loses its legitimacy to administer the country. 

3. Political patronage and a ‘culture of adjournment’ - Political patronage and a ‘culture of adjournment’ collude to prevent speedy trials against elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for an accused elected representative. 

4. Increased circulation of black money: The increased levels of corruption in public life weaken the state institutions including the bureaucracy, the executive, the legislature and the judiciary. 

5. Introduces a culture of violence in the society- Further, it introduces a culture of violence in the society and sets a bad precedence for the youth to follow.  

Reforms in the field of criminalisation of Indian politics

 by the Courts

Union of India

 vs

 Association of Democratic Reforms 

2002 (3) SCR 294

3 Judges Bench

Introduction

The Supreme Court of India upheld a High Court order mandating the Election Commission to obtain and disclose to the public background information relating to candidates running for office, including information on their assets, criminal records, and educational background.  The Supreme Court ruled that the right to know about public officials is derived from the constitutional right to freedom of expression.

Facts

On May 2, 2002 judgement of Union of India v. Association of Democratic Reforms (2002) 5 SCC 294, 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. 

Judgement

The Election Commission of India is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the constitution of India from each candidates seeking election to parliament or state legislature as a necessary part of his nomination paper. 

Furnishing there in information on the following aspects in relation to his candidature: 

A) Criminal background of candidate 

Whether the candidates is convicted / acquitted / charged of any criminal offence in the past – if any, whether he is punished with imprisonment or fine? 

B) Criminal charges against candidate 

Prior to six months of filling of nomination whether the candidates is accused in any pending case of any offence punishable with imprisonment for two year or more, and in which charged is framed or cognizance is taken by the court of law, if so details thereof. 

C) Financial position of candidate 

The assets (immovable, movable, bank balance etc) of candidate and of his/her spouse and that of dependents.

D) Financial liabilities of candidate 

Liabilities if any particularly whether there are any over dues of any public financial institution or government dues. 

E) Educational background of candidate 

There are no provisions in Indian constitution about educational qualification. Now it is mandatory to all candidates furnish information about their educational background. So that citizens can choose highly qualified representatives for the national administration. 

Thus, Supreme Court had concluded that for the survival of democracy, the right of the voter to know the antecedents of an electoral candidate would be part and parcel of the fundamental right to freedom of speech and expression. It would be the basis for a free and fair election process, which is part of the basic structure of the Constitution.

After the E.C. fulfilled this directive by issuing the necessary notification on June 28, 2002, the political felt that it would be more appropriate to seek details of the wealth of a candidate and his/her spouse and dependents, after he/she has won the election, rather than before as directed by the Supreme Court. 

Seeking details of the educational qualifications of candidates was considered not only unnecessary but against the spirit of the debates in the Constituent Assembly. Barring these two aspects, all political parties reached a broad consensus on the need to introduce legislation to ensure that the relevant criminal antecedents, if any, of the candidates, were made available to voters. 

In order to give effect to this, the Centre issued an ordinance in August 2002. 

During its winter session Parliament passed the necessary legislation to replace that ordinance. The People's Union for Civil Liberties (PUCL), Lok Satta, the Association for Democratic Reforms and other civil society initiatives filed a public interest petition in the Supreme Court challenging first the validity of the ordinance, and later the RPA (Amendment) Act on the grounds that Section 33B, as introduced by the Act, sought to nullify the court's May 2 judgment and, therefore, was violative of Article 19(1)(a).

Union for Civil Liberties and another v. Union of India and another with Lok Satta and others v. Union of India AIR [2003] SC 2363 In 1999, the 170 th Law Commission Report on Electoral Reforms was the first to suggest that a new Section 4A be added to the Representation of The People Act, 1951 mandating that a person shall be ineligible to contest elections unless they file an affidavit declaring their assets along with a declaration whether charges had been framed against them by a criminal court.

Peoples Union for Civil Liberties (PUCL) 

vs

 Union of India & Ors. 

(2003) 2 S.C.R. 1136 

2 Judges Bench

Introduction

In this judgement the Supreme Court held Section 33-B of the Representation of Peoples Act, 1951 as unconstitutional. The petitioner was an NGO named Peoples Union for Civil Liberties approached the Hon’ble Supreme Court under Article 32 to challenge Section 33-B of Representation of Peoples Act, 1951.

Issues

Whether Section 33-B of the RPA, 1951 violates Article 19 (1)(a) of the Indian Constitution?

PETITIONER’S ARGUMENTS

i. Section 33B is on the face of it, arbitrary and unjustifiable.

ii. The aforesaid section is on the face of it void as a law cannot be passed which violates abridges the fundamental rights of citizens/voters, declared and recognised by this court.

iii. It is submitted that without exercise of the right to know the relevant antecedents of the candidate, it will not be possible to have a free and fair election.

iv. Therefore, the impugned Section violates the very basic feature of the Constitution, namely, republic democracy.

v. For having free and fair elections, anywhere in the territory of this country, it isnecessary to give effect to the voters’ fundamental right as declared by this Court in the above judgment.

RESPONDENT’S ARGUMENTS

i. The aforesaid Ordinance/Amended Act is in consonance with the judgment rendered by this Court and the vaccum pointed out by the said judgment is filled in by the enactment.

ii. Voters’ right to know the antecedents of the candidates is not part of the fundamental rights, but it is a derivative fundamental right on the basis of interpretation of Article 19(1)(a) given by this court.

iii. The Ordinance/Amended Act is in public interest and, therefore, it cannot be held to be illegal or void.

Judgement

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. 

K. Prabhakaran 

vs

 P. Jayarajan

AIR 2005 SC 688 

5 Judges

Section 8 (4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/ sentence in higher courts within three months of the date of judgement by the trial court.

The decision was given by a Constitutional Bench headed by then Chief Justice R. C. Lahoti, held that:

• Section 8(4) of the Act operates as an exception, based on the factor of membership of a House. 

• section 8 (4) operates as an exception carved out from sub- section (1), (2) and (3) of Section 8 of RPA, 1951.

• The purpose of carving out an exception between sitting legislators and candidates is not to confer an advantage on any person; the purpose is to protect the House. 

• The government in power may be standing on a razor thin majority where each member counts significantly and disqualification of even one member may have serious consequences on its functioning. 

• Therefore, it was permissible to distinguish between candidates and sitting MPs under Article 14 of the Constitution. 

• The SC did not examine this question on the basis of Article 102(1)(e) of the Constitution. 

Lily Thomas 

vs 

Union of India 

(2013) 7 SCC 653

2 Judges

Introduction

This case pertains to the disqualification of Members of Parliament or the Legislature as the case may be. Two petitions were filed before the Supreme Court, one by Advocate Lily Thomas and the second by Lok Prahari, through its General Secretary S.N. Shukla, both of which pertained to the question of whether MLAs or MPs should be disqualified after they are convicted in a criminal case.

Issues

In this case provision, 8(4) of the Representation of Peoples Act, 1951 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.

Arguments of the Petitioner

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. 

Judgement

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.

CONTROVERSY BETWEEN K. Prabhakaran & Lily Thomas

In view of many legal luminaries the decision of Lily Thomas of a devision bench of the Supreme Court declaring ultravires Section 8(4) of the RP Act, 1951 seems to be not correct, as a Constitutional Bench of five judges in K. Prabhakarn have already declared that the said provision is "not unreasonable".

Manoj Narula 

vs

 Union of India 

(2014) 9 SCC 1 

5 Judges Bench

Introduction

The writ petition was filed under Article 32 by the petitioner assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. 

Issue

A public interest litigation filed by Narula for the removal of cabinet ministers with criminal backgrounds was initially dismissed in 2004 as the issue was being debated in Parliament. However, on coming for review in 2005, the then Chief Justice R.C. Lahoti and justice P.K. Balasubramanyan referred it to a five-judge Constitution bench.

Arguments

• Amicus curiae Rakesh Dwivedi argued that those with a criminal antecedent (limited to people who had criminal chargesheets filed and taken into consideration by a criminal court) ought not to be made part of the cabinet, said those familiar with the case. 

• The President of India appoints ministers in the cabinet on the advice of the Prime Minister.

• Lawyers T.R. Andhyarujina and K. Parasaran, assisting the court in this matter, said that this was against the constitutional prerogative and the will of the people as members of Parliament are elected through a democratic process. 

• The Indian government also asserted the role of Parliament in deciding the threshold of what would constitute as being a criminal antecedent as a democratic body.

Judgement

• Recognizing the limitations of the powers of the Court in matters of appointment of Ministers, it was held that the judiciary could not read a disqualification not contemplated by the statute into Article 75(1). 

• The Court left the appointment of Ministers with a criminal past to the discretion of the Prime Minister. 

• However, it recorded that it can always be legitimately expected that the Prime Minister, while delivering on the Constitutional expectations, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a minister of the council of ministers.

 Public Interest Foundation

 vs

 Union of India 

(2019) 3 SCC 224

 5 Judges Bench

Introduction

It is a landmark case in which the Hon'ble Supreme Court of India has issued guidelines and directions to curtail the criminalization of politics in India. The petition was filed by BJP leader Ashwini Upadhyay and the NGO Public Interest Foundation. The petition was filed to seek guidance from the Apex Court of India about the criminalization of politics and limitations on the criminalization of contesting elections.

Issues

 Whether the court can lay down any disqualification for membership of Parliament beyond Article 102(a) to (d) and Parliament's legislation under Article 102(e)?

Arguments by the Petitioner

• The petitioners proposed that the court should order the Election Commission to prohibit political parties from issuing tickets or accepting support from independent candidates with criminal records. Referring to the 1968 Election Symbols (Reservation and Allocation) Order, it was also claimed that the assigning of an election symbol to a recognised political party should be cancelled if it is found to be in violation of the EC 's mandate.

• It was also argued that the person who breaks law should not be allowed to become lawmakers, since the right to contest elections is not a fundamental right. 

• The Respondents, on the other hand, argued that the principle of separation of powers is being followed in India and that the Court did not have the power to make laws.

• This was also argued that Art. 142 of the Constitution of India (COI)does not grant the Court the power to add terms to existing legislation.
  
  
  
  

Judgement

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:

✔ Contesting candidates have to fill up a form provided by the election Commission containing all the necessary particulars. 

✔ The criminal cases pending against the candidate have to be stated clearly in the form in bold letters.

✔ 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. 

✔ The political party must put every such detail and information about the pending criminal cases of its members on its official website.

✔ 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 

vs 

Sunil Arora 

2020 SCC OnLine SC 178

3 Judges Bench

Introduction

In a major judgment, a bench of RF Nariman and S. Ravindra Bhat, JJ has directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.

Issues

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.

Arguments by the Petitioner

It was brought to the Court’s notice that 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.

Judgement

In this case the court issues directions:

✔ 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.

✔ It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

✔ Candidate contesting election from the ticket of a particular party has to inform the party about the criminal cases pending against him.

✔ The political party has to put up the information regarding criminal antecedents of its candidate on their official website.

✔ 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. 

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.