The Criminalisation of politics and Supreme Court – Explained, pointwise

Introduction

Recently, the SC issued few important directives to prevent the criminalisation of politics. The state governments withdraw cases against MPs and MLAs frequently. To curb that, recently, the Supreme Court held that a criminal case against an MP or MLA can be withdrawn only after getting the consent of the State High Court concerned. In another case, the Court issued few steps to weed out the criminalisation from legislators. This article explains the recent Supreme Court steps to stop the criminalisation of politics.

What is the criminalisation of politics?

The criminalisation 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.

The growth of criminalisation of politics in India

• 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.
• According to the Association of Democratic Reforms (ADR), Nearly half of the recently elected Lok Sabha members have criminal charges against them. This is a 26% increase as compared to 2014.

About the recent case (case 1)

The SC bench was hearing a pending PIL, seeking the establishment of fast-track courts for cases against legislators.

In November 2017, the Supreme Court had ordered the setting-up of Special Courts in each state to try the pending cases. Accordingly, 12 such courts were set up across the country.

About the withdrawal of cases against legislators

Various State governments have resorted to the withdrawal of numerous criminal cases pending against MP/MLA by utilising the power vested under Section 321 CrPC.

• Under Section 321, the public prosecutor or assistant public prosecutor may, with the consent of the court, withdraw from the prosecution of a case at any time before the judgment is pronounced.

For instance, In 2020, the Karnataka government decided to withdraw 61 cases, many of which were against elected representatives. Similarly, the Uttarakhand government had filed for withdrawing a murder case against a sitting MLA.

About the Supreme Court’s ruling:

• The court held that the power under Section 321 CrPC is a responsibility that is to be utilised in the public interest and cannot be used for extraneous and political considerations.
• To ensure expeditious disposal of pending cases, the SC directed the officers presiding over Special Courts or CBI Courts involving the prosecution of MPs or MLAs to continue in their present posts until further orders (No transfer is permitted). This direction will be subject to their superannuation or death.
• The court mentioned that CBI, ED and other central agencies delay filing status.
• The SC observed the following things.
  • There are no details about the States or which is the oldest case.
  • So, the SC directed the Centre to submit detailed reports on the cases registered by CBI, ED and other central agencies against MPs and MLAs. These cases range from corruption to money laundering.

About the transparency in elections (case 2):

In another case, the supreme court observed that criminalisation in the Indian political system is growing day by day. The Court also observed that “Persons involved in the criminalisation of the political system should not be permitted to be the lawmakers.”

To curb that, the February 2020 order of the SC required political parties to publish details of criminal cases against its candidates on their websites besides a local vernacular newspaper and a national newspaper and social media accounts. This has to be done within 48 hours of candidate selection or not less than two weeks before the first date for filing of nominations, whichever is earlier.

SC directives to curb criminalisation of politics

The SC modified this and said the following things to weed out criminalisation.

• The details “shall be published within 48 hours of the selection of the candidate”.
• Political parties to have a caption “candidates with criminal antecedents candidates” on their homepages.
• The SC asked ECI “to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents” so that voters can get all the information in one stroke and to carry awareness campaigns for voters.

Consequences of criminalisation of politics:

1. The presence of people with criminal backgrounds in politics and law-making of the country has negative impacts on the quality of democracy.
2. Enormous amounts of illegal money flow into the electoral process due to extensive links with the criminal underworld.
3. The criminalisation of politics also has the consequence of obstructing the process of justice and causing further delays in trials.
4. Criminals entering politics further increases corruption in public life and has an adverse negative impact on the state institutions including the bureaucracy, the executive, the legislature and the judiciary.
5. The criminalisation of politics introduces a culture of violence in society and sets a bad precedence for the youth to follow.

Judicial steps to control criminalisation of politics

• In Union of India (UOI) v. Association for Democratic Reforms and Anr, 2002, the SC held 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.
• The SC in Public Interest Foundation vs Union Of India case, 2018 had also directed political parties to publish online the pending criminal cases of their candidates.
  • In this case, the court 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.

Suggestions to control the criminalisation of politics

Election Commission Recommendations:

• The Election Commission in its “Proposed Electoral Reforms” (2016) recommended that persons charged with cognizable offences should be debarred 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 the filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950.

Sources: The Hindu, Indian Express (Article 1, Article 2), Times of India