Issue

Context

The Supreme Court has ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that goaded them to field suspected criminals over decent people.

Background

• The information should be published in a local and a national newspaper as well as the parties’ social media handles.
• It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
• It ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
• The judgment applies to parties both at the Central and State levels.
• The published information on the criminal antecedents of a candidate should be detailed and include the nature of the offences, charges framed against him, the court concerned and the case number.

Analysis

Rationale behind the publishing of criminal records of the candidates

• Increasing criminalization of politics in India: 

• 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.
• Criminals often facing heinous charges like rape and murder, encroaching into the country's political and electoral scenes.

• To ensure the accountability of political parties and enhance transparency.
• Right to know: Lack of information about such criminalization among the citizenry hampers citizen’s right to know and is a threat to the basic structure of the constitution.

Criticism

• Many political parties observed that the SC’s decision is a step in the right direction. However, unless it is backed by a penal provision, it would be nothing but a cosmetic exercise. Instead, according to them, the SC should have asked the centre to frame laws taking into consideration other aspects of political reforms such as putting a cap on expenditure incurred during elections by political parties, etc.
• Others have questioned the quantum of crime in the cases filed against political leaders, stressing that many of them were due to political rivalry, and that apex court transgressed boundaries.
• On the other hand, left parties lauded the larger cause of electoral reforms but called the SC judgment as impractical in real terms. According to them, a large number of cases are filed against political activists. Even a case registered under Section 144 of the IPC is considered a criminal offence. Whereby, sedition cases are being filed against several Opposition leaders.
• Further, they pointed out that Left leaders in trade unions face several cases as they are in continuous conflict with the management. They can’t be equated with criminals. The judicial system has its fallacies. Thousands of serious criminal cases are pending before courts. Therefore, this judgment should not be seen in isolation from the ground reality.

Challenges

• However, it must be underscored that the de-criminalisation of politics cannot be achieved by judicial fiat alone. 
• The political class has to respond to the challenge. Parties would probably justify their choice of candidates by pointing out that the law now bars only those convicted and not those facing charges, however serious they may be. Besides, they are apt to dismiss all pending cases as “politically motivated”. 
• Beyond this debate, a larger question looms about the significance of more information on the background of candidates, if voters back a particular leader or party without reference to the record of the candidates fielded. 

Other major landmark judgments concerning electoral reforms: Jan Chaukidari v/s Union of India: in this case, SC upheld that those who are in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election. Section 62(5) of Representation of People Act lays down that right to vote is not available to a prisoner, except a person under preventive detention. Thus, all prisoners who are not under preventive detention can neither vote nor can they contest elections. Lily Thomas v/s Union of India: SC ruled that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted of a crime and given a minimum of two-year imprisonment, loses membership of the House with immediate effect. This is in contrast to the earlier position, wherein convicted members held on to their seats until they exhausted all judicial remedies in lower, state and the supreme court of India. Further, Section 8(4) of the Representation of the People Act, which allowed elected representatives three months to appeal their conviction was declared unconstitutional

Way forward

• A legislative option is to amend the law to bar from contest those against whom charges have been framed.
•  A more meaningful option would be for parties to refrain from giving a ticket to such candidates. 
• Further, in this regard, making parliamentary legislation to curb criminalisation of politics may help to deliver constitutional governance.