Issue

Context

A two-Judge Bench of Supreme Court delivered a Judgment on the contempt petitions regarding the criminalisation of politics in India. 

Background:

• The criminalisation of politics was never an “unknown phenomenon” in Indian political system but its presence was seemingly felt in its “strongest form” during the 1993 Mumbai bomb blasts which were the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons.
• The recent judgment is, more or less, an extension of the Supreme Court’s 2018 judgment.
• In September 2018, the Supreme Court had refused todisqualify politicians against whom criminal charges were pending from contesting elections, and left it to Parliament to frame an appropriate law.
• It ordered political parties to publish a nominated candidate’s pending criminal cases on their official websites within 48 hours of selection.
• However, the directions given by the apex court in 2018 have not succeeded.

Analysis

The criminalisation of politics:

• In India, the Criminalisation of political system can be understood as rising participation of criminals in the electoral process and selection of the same as elected representatives of the people due to the nexus between the criminals and some of the politicians.
• Components: The criminalisation of our political system has various forms and components such as –
  • Muscle Power: In Indian politics, muscle power is not a new trend rather it has been a fact of life for a long time. Different political parties use muscle power to influence the attitude and conduct of sizable sections of the electorate.
  • Gangsters: In most cases, the voters are too reluctant to take measures that would curtail the criminal activities. Many politicians chose gangster to gain larger vote bank.
  • Money Power: It is a widely accepted fact that the elections to Parliament and State Legislatures are very expensive and this huge election expenditure is the root cause for corruption in India. To gain vote bank, politician uses money power.

The Ruling:

• The Bench comprising of Justice RF Nariman and Justice Ravindra Bhat 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, the number went up to 30%, in 2014 to 34% and in 2019, 43% of MPs had criminal cases pending against them.
• The SC has directed political parties to upload details of pending criminal cases against candidates contesting polls on their website.
• Parties will also publish the details of pending criminal cases against candidates on social media platforms and newspapers.
• Political parties will have to specify reasons for selecting candidates having pending criminal cases against them on their website.
• Political parties will have to submit a compliance report in this regard to the Election Commission within 72 hours of selecting candidates having pending criminal cases against them.
• It directed that the EC shall bring it to the notice of the apex court in case of failure of political parties to comply with its directions.
  
  

The present law:

• The Representation of Peoples (RP) Act, 1950 is an act to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections too, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls.
• According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples (RP) Act from contesting elections only after their conviction in a criminal case.

Right to Information Act and Criminalization of Politics:

• The Right to Information Act 2005 is a historical Act that makes Government officials liable for punishment if they fail to respond to people within a stipulated timeframe.
• As per the Supreme Court, the right to information - the right to know antecedents, including the criminal past, or assets of candidates - was a fundamental right under Article 19(1) (a) of the Constitution and that the information was fundamental for the survival of democracy.
  • In its Judgement of 2002, it directed the Election Commission to call for information on an affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers.

Should SC venture into the Legislative arena?

There are divergent views on this issue:

• Centre:

• The Centre had contended that the judiciary should not venture into the legislative arena by creating a pre-condition which would adversely affect the right of the candidates to participate in polls as there was already the RP Act which deals with the issue of disqualification.

• Election Commission of India:

• The Election Commission of India had taken a view which was apparently opposite to the Centre and said that the recommendations for decriminalising politics were made by the poll panel and the Law Commission back in 1997 and 1998, but no action was taken on them.
• It exhorted the court to issue the direction in the matter besides asking Parliament to make the suitable law.

• Supreme Court:

• At present, there is no law in the land that prevents criminally charged persons from standing for elections. In the absence of such a law, the court could step in and put disqualification criteria.
• The right to stand for election is not a fundamental right. So, putting some restriction on who can and cannot stand in the election, is not a suppression of ‘freedom of speech’ or ‘right to livelihood’.

The solution to the criminalisation of politics has to come from the judiciary which has been the guardian angel of democracy. It has to be proactive. The current state of judicial paralysis is a reason why India scores only 0.57 out of 1 regarding ‘judicial independence’ in the Global State of Democracy Index. The country has also lost too much ground in the Democracy Index compiled by the Economist Intelligence Unit and finds itself at 51st rank, the steepest decline since 2006. 

Reasons for Criminalisation of Politics:

Following are the reasons for the criminalization of politics in the Indian political system:

• Unholy nexus between politicians and bureaucracy: The most important cause of criminalisation of politics is the unholy nexus between politicians and bureaucracy. This undesirable and dangerous relationship between bureaucracy and political leaders opened the door of criminalisation of politics.
• Irrelevant interference: The interference of politicians in the administration may be regarded as another reason for criminalisation of politics. It is increasing corruption and the net result is politics is, ultimately, criminalised.
• Quota system: Caste and religion both are equally responsible for the criminalisation of politics. Though there are certain fixed procedures and rules in the promotion, caste and religion both interfere in this process.
• Political system: The system of party government is also responsible for the criminalisation of politics. On the eve of the general election, the leaders of the party give promises to the electorate. The purpose is to win the election.
• Economic issues: Un-development, poverty, illiteracy and prismatic nature of Indian social system are collectively responsible for the criminalisation of politics.
• Corruption: Institutionalization of corruption is an ongoing process in our politico-administrative system because the corrupting of the institutions, in turn, has finally led to the institutionalization of corruption.
• Loopholes in the functioning of ECI: Election commission merely informs the people about the information related to the candidate.
• Denial of Justice and Rule of Law: Today, there is very little faith in India in the efficacy of the democratic process is actually delivering good governance.

Significance of the decision:

• Wise decision & informed choice: Complete information about criminal antecedents of the candidates forms the “bedrock of wise decision-making and informed choice by the citizenry” as the informed choice was the cornerstone to have a pure and strong democracy.
• The judgment signified the court's alarm at the unimpeded rise of criminals, often facing heinous charges like rape and murder, encroaching into the country's political and electoral scenes.

If our executive, legislature and judiciary continue to downplay the threat that criminalisation poses to our democracy, it will not be surprising if the world’s largest democracy degenerates from ‘flawed’ to ‘hybrid.