The Extent of Criminalisation in Politics[1]

Despite the best intentions of the drafters of the Constitution and the Members of Parliament at the onset of the Indian Republic, the fear of a nexus between crime and politics was widely expressed from the first general election itself in 1952. In fact, as far back as in 1922, Mr. C. Rajagopalachari had anticipated the present state of affairs twenty five years before Independence, when he wrote in his prison diary: “Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us…”[2]

Interestingly, observers have noted that the nature of this nexus changed in the 1970s. Instead of politicians having suspected links to criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began entering politics.[3] This was confirmed in the Vohra Committee Report in 1993, and again in 2002 in the report of the National Commission to Review the Working of the Constitution (NCRWC). The Vohra Committee report pointed to the rapid growth of criminal networks that had in turn developed an elaborate system of contact with bureaucrats, politicians and media persons.[4] A Consultation Paper published by the NCRWC in 2002 went further to say that criminals were now seeking direct access to power by becoming legislators and ministers themselves.[5]

Since the judgment of the Supreme Court in Union of India v. Association for Democratic Reforms,[6] which made the analysis of criminal records of candidates possible by requiring such records to be disclosed by way of affidavit, the public has had a chance to quantitatively assess the validity of such observations made in the previous reports. The result of such analysis leads to considerable concern.

In the ten years since 2004, 18% of candidates contesting either National or State elections have criminal cases pending against them (11,063 out of 62,847). In 5,253 or almost half of these cases (8.4% of the total candidates analysed), the charges are of serious criminal offences that include murder, attempt to murder, rape, crimes against women, cases under the Prevention of Corruption Act, 1988, or under the Maharashtra Control of Organised Crime Act, 1999 which on conviction would result in five years or more of jail, etc. 152 candidates had 10 or more serious cases pending, 14 candidates had 40 or more such cases and 5 candidates had 50 or more cases against them.[7]

The 5,253 candidates with serious cases together had 13,984 serious charges against them. Of these charges, 31% were cases of murder and other murder related offences, 4% were cases of rape and offences against women, 7% related to kidnapping and abduction, 7% related to robbery and dacoity, 14% related to forgery and counterfeiting including of government seals and 5% related to breaking the law during elections.[8]

Criminal backgrounds are not limited to contesting candidates, but are found among winners as well. Of these 5,253 candidates with serious criminal charges against them, 1,187 went on to winning the elections they contested i.e. 13.5% of the 8,882 winners analysed from 2004 to 2013. Overall, including both serious and non-serious charges, 2,497 (28.4% of the winners) had 9,993 pending criminal cases against them.

In the current Lok Sabha, 30% or 162 sitting MPs have criminal cases pending against them, of which about half i.e. 76 have serious criminal cases. Further, the prevalence of MPs with criminal cases pending has increased over time. In 2004, 24% of Lok Sabha MPs had criminal cases pending, which increased to 30% in the 2009 elections.[9]

The situation is similar across states with 31% or 1,258 out of 4,032 sitting MLAs with pending cases, with again about half being serious cases.[10] Some states have a much higher percentage of MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending.[11] A number of MPs and MLAs have been accused of multiple counts of criminal charges. In a constituency of Uttar Pradesh, for example, the MLA has 36 criminal cases pending including 14 cases related to murder.[12]

From this data it is clear that about one-third of elected candidates at the Parliament and State Assembly levels in India have some form of criminal taint. Data elsewhere suggests that one-fifth of MLAs have pending cases which have proceeded to the stage of charges being framed against them by a court at the time of their election.[13] Even more disturbing is the finding that the percentage of winners with criminal cases pending is higher than the percentage of candidates without such backgrounds. While only 12% of candidates with a “clean” record win on average, 23% of candidates with some kind of criminal record win. This means that candidates charged with a crime actually fare better at elections than ‘clean’ candidates. Probably as a result, candidates with criminal cases against them tend to be given tickets a second time.[14]18 Not only do political parties select candidates with criminal backgrounds, there is evidence to suggest that untainted representatives later become involved in criminal activities.[15]The incidence of criminalisation of politics is thus pervasive making its remediation an urgent need.

Existing Legal Framework[16]

Legally, the prevention of the entry of criminals into politics is accomplished by prescribing certain disqualifications that will prevent a person from contesting elections or occupying a seat in Parliament or an Assembly. Qualifications of members of Parliament are listed in Article 84 of the Constitution, while disqualifications can be found under Article 102. Corresponding provisions for members of State Legislative Assemblies are found in Articles 173 and 191.

Article 102 states that a person shall be disqualified from being chosen, and from being a member of either House of Parliament if he holds an office of profit, if he is of unsound mind and so declared by a competent court, if he is an undischarged insolvent, if he is not a citizen of India and if he is disqualified by any other law made by Parliament.

Parliament through the RPA has prescribed further qualifications and disqualifications for membership to Parliament or to a Legislative Assembly. Section 8 of the Act lists certain offences which, if a person is convicted of any of them, disqualifies him from being elected, or continuing as, a Member of Parliament or Legislative Assembly. Specifically, Section 8(1) lists a number of offences, convictions under which disqualify the candidate irrespective of the quantum of sentence or fine – these include certain electoral offences, offences under the Foreign Exchange Regulation Act, 1973, the Narcotics Drugs and Psychotropic Substances Act, 1985 the Prevention of Corruption Act, 1988 etc. Section 8(2) lists other offences, convictions under which would only result in disqualification if imprisonment is for six months or more. Section 8(3) is a residuary provision under which if a candidate is convicted of any offence and imprisoned for two years or more, he is disqualified.[17] Disqualification operates from the date of conviction and continues for a further period of six years from the date of release.

The scheme of disqualification upon conviction laid down by the RPA clearly upholds the principle that a person who has conducted criminal activities of a certain nature is unfit to be a representative of the people. The criminal activities that result in disqualification irrespective of punishment under S. 8(1) are either related to public office, such as electoral offences or insulting the national flag, or are of grave nature, such as offences under terrorism laws. S. 8(3), on the other hand, envisages that any offence for which the minimum punishment is two years is of a character serious enough to merit disqualification. In either case, it is clear that the RPA lays down that the commission of serious criminal offences renders a person ineligible to stand for elections or continue as a representative of the people. Such a restriction, it was envisaged, would provide the statutory deterrent necessary to prevent criminal elements from holding public office, thereby preserving the probity of representative government.

However, it is clear from the above account of the spread of criminalisation in politics that the purpose behind S. 8 of the RPA is not being served. The consequences of such criminalisation and the possible reform measures that may be considered shall be discussed in the following chapters.

With respect to the filing of affidavits by candidates, a candidate to any National or State Assembly elections is required to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Election Rules, 1961, containing information regarding their assets, liabilities, educational qualifications, criminal convictions against them that have not resulted in disqualification, and cases in which criminal charges are framed against them for any offence punishable with two years or more.

Failure to furnish this information, concealment of information or giving of false information is an offence under S. 125A of the RPA. However, the sentence under S. 125A is only imprisonment for a period of 6 months, and the offence is not listed under S. 8(1) or (2) of the RPA. Therefore, conviction under S. 125A does not result in disqualification of the candidate. Neither is the offence of false disclosure listed as a corrupt practice which would be a ground for setting aside an election under Section 100.

Therefore, there is currently little consequence for the offence of filing a false affidavit, as a result of which the practice is rampant.

Supreme Court Judgments interpreting this Framework[18]

The judiciary has sought to curb this menace of criminalisation of politics through several seminal judgments and attendant directions to the government and the Election Commission primarily based on the aforesaid provisions. Specifically, orders of the Supreme Court seeking to engender a cleaner polity can be classified into three types: first, decisions that introduce transparency into the electoral process; second, those that foster greater accountability for holders of public office; third, judgments that seek to stamp out corruption in public life. The discussion below is not meant to be an exhaustive account; it merely illustrates the trends in Supreme Court jurisprudence relating to the question of de-criminalisation of politics.

In Union of India v. Association for Democratic Reforms[19](hereinafter ‘ADR’) the Supreme Court directed the Election Commission to call for certain information on affidavit of each candidate contesting for Parliamentary or State elections. Particularly relevant to the question of criminalisation, it mandated that such information includes whether the candidate is convicted/acquitted/discharged of any criminal offence in the past, and if convicted, the quantum of punishment; and whether prior to six months of filing of nomination, the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by a court. The constitutional justification for such a direction was the fundamental right of electors to know the antecedents of the candidates who are contesting for public office. Such right to know, the Court held is a salient facet, and the foundation for the meaningful exercise of the freedom of speech and expression guaranteed to all citizens under Article 19(1)(a) of the Constitution.

Again in People’s Union for Civil Liberties v. Union of India[20](hereinafter ‘PUCL’) the Supreme Court struck down Section 33B of the Representation of People (Third Amendment) Act, 2002 which sought to limit the ambit of operation of the earlier Supreme Court order in the ADR case. Specifically it provided that only the information that was required to be disclosed under the Amendment Act would have to be furnished by candidates and not pursuant to any other order or direction. This meant, in practical terms, that the assets and liabilities, educational qualifications and the cases in which he is acquitted or discharged of criminal offences would not have to be disclosed. Striking this down, the Court held that the provision nullified the previous order of the Court, infringed the right of electors’ to know, a constituent of the fundamental right to free speech and expression and hindered free and fair elections which is part of the basic structure of the Constitution. It is pursuant to these two orders that criminal antecedents of all candidates in elections are a matter of public record, allowing voters to make an informed choice.

At the same time, the Supreme Court has also sought to foster greater accountability for those holding elected office. In Lily Thomas v. Union of India[21] the Court held that Section 8(4) of the RPA, which allows MPs and MLAs who are convicted while serving as members to continue in office till an appeal against such conviction is disposed of, is unconstitutional. Two justifications were offered — first, Parliament does not have the competence to provide different grounds for disqualification of applicants for membership and sitting members; second, deferring the date from which disqualification commences is unconstitutional in light of Articles 101(3) and 190(3) of our Constitution, which mandate that the seat of a member will become vacant automatically on disqualification.

Again in People’s Union for Civil Liberties v. Union of India[22](hereinafter ‘NOTA’), the court held that the provisions of the Conduct of Election Rules, 1961, which require mandatory disclosure of a person’s identity in case he intends to register a no-vote, is unconstitutional for being violative of his freedom of expression, which includes his right to freely choose a candidate or reject all candidates, arbitrary given that no analogous requirement of disclosure exists when a positive vote is registered, and illegal given its patent violation of the need for secrecy in elections provided in the RPA and widely recognised as crucial for free and fair elections. Thus by allowing voters to express their dissatisfaction with candidates from their constituency for any reason whatsoever, the Supreme Court order has a significant impact in fostering greater accountability for incumbent office-holders. When its impact is combined with the decision in Lily Thomas, it is clear that the net effect of these judgments is to make it more onerous for criminal elements entrenched in Parliament from continuing in their positions.

Third, the Supreme Court has taken several steps for institutional reform to sever the connection between crime and politics. In VineetNarain v. Union of India[23] a case concerning the inertia of the Central Bureau of Investigation (CBI) in investigating matters arising out of certain seized documents known as the ‘Jain diaries’ which disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, the Supreme Court used the power of continuing mandamus to direct large-scale institutional reform in the vigilance and investigation apparatus in the country. It directed the Government of India to grant statutory status to the Central Vigilance Commission (CVC), laid down the conditions necessary for the independent functioning of the CBI, specified a selection process for the Director, Enforcement Directorate (ED), called for the creation of an independent prosecuting agency and a high-powered nodal agency to co-ordinate action in cases where a politico-bureaucrat-criminal nexus became apparent. These steps thus mandated a complete overhaul of the investigation and prosecution of criminal cases involving holders of public office.

Addressing the problem of delays in obtaining sanctions for prosecuting public servants in corruption cases, Vineet Narain also set down a time limit of three months for grant of such sanction. This directive was endorsed by the Supreme Court in Subramanium Swamy v. Manmohan Singh,[24]where the Court went on to suggest the restructuring of Section 19 of the Prevention of Corruption Act such that sanction for prosecution will be deemed to have been granted by the concerned authority at the expiry of the extended time limit of four months. In these and other cases,[25] the Supreme Court has attempted to facilitate the prosecution of criminal activity, specifically corruption, in the sphere of governance.

The Supreme Court, through its interpretation of statutory provisions connected with elections as well as creative use of its power to enforce fundamental rights, has made great strides towards ensuring a cleaner polity, setting up significant barriers to entry to public office for criminal elements as well as instituting workable mechanisms to remove them from office if they are already in power. The Commission appreciates that these decisions demonstrate the need for the law itself to be reformed on a dynamic basis taking cognizance of latest developments. The same view is echoed by the several committees and commissions in the past which have recommended fundamental changes to laws governing electoral practices and disqualifications.