Disqualification at the stage of framing of charges, accompanied by other legal safeguards, could be an effective means to curb such criminalisation.
EARLIER this week, while hearing a petition seeking a lifetime ban on convicted politicians, the Supreme Court observed that it found no logic in a convicted legislator being barred from contesting elections for just six years. The SC Bench, comprising Justice Dipankar Datta and Justice Manmohan, highlighted conflict of interest and the tardy pace at which the so-called ‘fast track courts’ were functioning due to shortage of judges and other reasons. It also took note of the rapid rise in the pending criminal cases against MPs/MLAs.
As per figures submitted by the amicus curiae before the apex court, the total number of pending cases against MPs/MLAs was 4,075 in 2018. As on January 1, 2025, this number increased to 4,732 with 559 cases pending for over a decade.
The Central government has strongly opposed the petition, stating that considering such a step (lifetime ban) is solely Parliament’s domain. It has argued that the Representation of the People Act, 1951, granted Parliament the discretion to determine both the grounds and duration of the disqualification.
Over the last few decades, a number of committees have flagged rising criminality in our political system and election of candidates with criminal antecedents. However successive governments have done little to address this grave matter. Almost all political parties give tickets to 30-35 per cent candidates with criminal cases based on the criterion of winnability. As a result, currently, there are certain states where the percentage of MLAs with criminal cases range from 55-65 per cent.
On various occasions, the SC has called this “cancerous for our democracy” and used the oft-repeated phrase “lawbreakers can’t be lawmakers.” Unfortunately, every time in the past, the SC just passed observations on the gravity of the situation and stated that this is the domain of Parliament.
Let us consider data provided by the Association for Democratic Reforms. As of June 2023, out of 4,001 sitting MLAs in all state Assemblies and UTs, 44 per cent have declared criminal cases. As on September 2023, out of 763 sitting MPs from ther Rajya Sabha and the Lok Sabha, 40 per cent declared criminal cases. As many as 33 per cent of the Rajya Sabha MPs and 46 per cent of the Lok Sabha MPs have declared criminal cases against themselves as per the 2024 data.
Thirty per cent cases against MPs/MLAs are pending over five years. Among the states/UTs which submitted details, the highest number of cases pending over five years was reported in Odisha (323 out of 454 cases) followed by Maharashtra (169 out of 482 cases).
In February 2020, the SC had directed political parties to list reasons on their websites, including their social media platforms, for nominating candidates with a criminal background within 72 hours of the selection of such candidates.
In September 2018, the court had directed political parties and candidates with criminal antecedents to publish the details of their criminal cases at least on three different dates from the date following the last date of withdrawal of candidatures and up to two days before the date of poll. In the same order, the court had asked Parliament to make a law that prevents candidates accused of serious crimes from entering politics.
In November 2017, the SC had ordered the setting up of special courts to deal with 1,581 cases involving MPs and MLAs as declared at the time of filing of the nomination papers for the 2014 elections. Eleven states have set up 12 special courts. There are two in Delhi and one each in Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar, West Bengal, Maharashtra and Madhya Pradesh.
The 20th Law Commission, in its 244th report on electoral disqualification, recorded that disqualification upon conviction had proved ineffective in preventing the criminalisation of politics. Disqualification at the stage of framing of charges, accompanied by other legal safeguards, could be an effective means to curb such criminalisation. It also recommended that the punishment for filing of false affidavits be enhanced to minimum two years’ imprisonment and such an offence must also be made a ground for disqualification. Accordingly, in all such cases, trials must be conducted on a day-to-day basis so as to ensure the necessary conviction that precedes disqualification.
Perhaps, in no other democracy in the world do we have such a large number of sitting legislators with criminal cases. Nor is there such casual acceptance of this situation by the Election Commission or the citizens. Ethics and morality seem to have lost their meaning in our political system.
This was perhaps foreseen by the founding fathers of our Constitution. Even in the constituent assembly debates, Dr Ambedkar and Dr Rajendra Prasad had said that the Constitution is just a document. How good or bad it was would depend on the character and ability of the men and women charged to implement it.
They hoped that in future, our country would have leaders of noble character who would implement the Constitution in letter and spirit. Unfortunately, their hopes have been belied by those who take the constitutional oath during the swearing-in ceremony.
Also, the institutions charged with upholding the high ideals of our Constitution are being seen as reluctant to go the last mile.
How can we expect political parties to transform themselves and refrain from giving the ticket to tainted politicians? After all, money and muscle power has become the primary winnability factor. If a candidate has invested a certain amount in his campaign, he recovers 10 times that amount after winning elections.
In such a scenario, how can we expect good governance? We certainly don’t see a mass movement from the citizens/voters to cleanse the system. So, whom do we look at for a solution to this problem?
Civil society organisations and some concerned citizens are trying their best to educate voters to elect clean candidates. However, it’s high time the courts stepped in to restore the sanctity of our political and electoral systems.
During the hearing recently, Justice Manmohan said, “Criminalisation of politics is a major issue and the ECI should have applied its mind to it….We need to be told how one who is not suitable to continue in government service, can become a minister.” The SC further clarified that in the event no response is filed, the court will proceed with the matter.
The moot question remains whether the Supreme Court will bite the bullet, given the stiff opposition displayed by the Centre in its affidavit opposing the petition.