Judicial Vigilance and Legislative Reforms: Addressing Criminalization of Politics in India

Context:

• This article is based on an Editorial “Speedy disposal of cases against lawmakers: What SC guidelines on the matter say” which was published in Indian Express. The Supreme Court recently issued guidelines to monitor the speedy disposal of criminal cases, addressing the alarming issue of the criminalization of politics against Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs).

Supreme Court Advocates for Lifetime Ban on Convicted Politicians Amid Rising Criminalization of Politics

• Lifetime ban on convicted politicians: Petition demanded banning legislators from contesting elections rather than subjecting them to the six-year ban, as laid down under Section 8(3) of the Representation of People Act, 1951.
• Amicus curiae Vijay Hansaria submitted a report (November 2022)  to the top court pointing out that the number of cases against MPs and MLAs have continued to rise.
• • Increasing  from 4,122 in December 2018 to the present figure of 5,097(doesn’t even include cases in Rajasthan, Uttarakhand, Jammu and Kashmir, and Ladakh, for which data is not available).
  • 41% of these cases are more than five years old, “despite the fact that this court is seized of the matter and has passed various interim orders from time to time to expedite the trial.

Supreme Court Introduces Guidelines for Disposal of Criminal Cases Against Legislators

• Special Bench: The court called for monitoring criminal cases against legislators to address the issue of Criminalization of Politics.
  • Moreover, The special bench has the authority to seek assistance from the Advocate General(AG) or prosecutor.
  • While the court addressed the aspect of plea seeking speedy disposal of cases against MPs and MLAs, it kept open the issue of replacing the 6-year ban with a lifetime one.
• Suo Motu Cases By Chief Justices: The chief justices from high courts(HC) can now initiate suo motu cases for speedy resolution of pending criminal cases involving lawmakers. 
• Guidelines For Trial Courts: The court delegated the task to HCs devise effective monitoring measures.
• Authority To High Courts: The HCs can issue orders and instructions for the efficient resolution of such cases. 
  • They can call upon the Principal District and Sessions Judge to take on the responsibility of allocating “subject cases” to such courts.
• Priority Cases: The priority shall be given to cases against lawmakers that are punishable with death or life imprisonment, addressing the issue of Criminalization of Politics.
  • Cases with 5 years imprisonment or more will also be prioritized.

Criminalization Of Politics: 

• Participation of criminals in politics: Persons with criminal background contest in the election and get selected as a member of parliament or state legislature. 
  • It refers to the situation where the lawmakers became the lawbreakers. 

Alarming Rate of Pending Criminal Cases Against Elected Representatives in India

• After the 2019 Lok Sabha elections, 43% of the newly-elected MPs had pending criminal cases against them, highlighting the issue of Criminalization of Politics..
  • The Association for Democratic Reforms (ADR) is an advocacy group focused on electoral reforms.
• As per media reports of February 2022, the number of pending criminal cases against sitting and former MLAs and MPs had risen to close to 5,000 towards the end of December 2021.

Understanding the Factors Behind the Criminalization of Politics in India

• Muscle And Money Power:  it involves the free use of musclemen to influence the attitude and conduct of the electorate. 
  • The politicians are thriving today on the basis of muscle power provided by criminals. 
  • the political parties and individuals engage in exorbitant spending for vote buying and other illegitimate purposes through these criminals or musclemen. 
  • a link between the politician and criminals in a constituency provides a congenial climate to political crime. 
• Political Control Of Police: and influence over crime investigation. transfers and postings are entirely controlled by elected politicians, a concerning aspect of the Criminalization of Politics. Often, police officials who act impartially and independently are transferred.
• • The governments have formal powers of dropping charges and prosecution, and such powers are exercised to protect their favored criminals and to harass opponents.
• Electoral System And Political Culture: Candidates with huge financial resources, backed by caste alliances and loyal political networks, including those involving criminals, enjoy an edge in elections.
  • 97% MLAs crorepatis in Karnataka’s new Assembly, 55% have criminal charges: ADR report
  • Due to the uncertainties of the first-past-the-post system, political parties are eager to attract ‘strong’ and ‘potentially winning’ candidates, often at the expense of honorable and commendable public figures.
• Failure Of Criminal  Justice System: Massive delays of cases of criminal candidates over the years has made the formal justice system stagnant and inefficient, failing to provide credible and swift resolutions to disputes or punishment for criminals.
• • With over 40 million cases pending in courts, most of them for years and decades, people have lost faith in the formal justice system.
• Among other reasons contributing to the criminalization of politics:
  • a partisan interfering in the investigation of crime and poor prosecution of cases.
  • unwarranted granting of parole and abundance withdrawal of the court cases.

Undermining Democracy: The Far-reaching Implications of Criminalization of Politics in India

• Threat to Democracy: It poses a serious threat to democracy as it undermines the rule of law and democratic institutions. 
  • When politicians with criminal backgrounds hold public office, they can use their power to subvert the justice system and create a culture of impunity.
• Governance Issues: Politicians with criminal backgrounds are more interested in serving their own interests rather than those of the people. 
  • This leads to a lack of good governance, and a failure to address important issues facing the country.
• Corruption: Criminalization of politics often goes hand in hand with corruption. 
  • Politicians with criminal backgrounds use their power for personal gain, which leads to widespread corruption.
  • India ranks 85 in Transparency International’s corruption index.
• Criminalization of Political Parties: Criminalization of politics leads to criminalization of political parties, with criminal elements gaining control of political parties and using them for their own benefit. 
  • This further weakens democratic institutions and undermines the rule of law.
• Public Trust: It  erodes public trust in the political system. 
  • This leads to apathy and disillusionment among the public, with people losing faith in democratic institutions and the rule of law.
• Other impacts: 
  • Betrays the electoral mandate of the voters.
  • Corrodes the fundamental tenets of the party system.
  • Destabilised elected governments.
  • Reduces the value of politics from a transformative tool for social change to serving individual interests.

Judicial Responses to Criminalization of Politics in India

• Public Interest Foundation v. Union of India (2019): The SC ordered political parties to publish the criminal records of their candidates on their websites, social media handles, and newspapers. 
  • The court also directed the Election Commission of India(ECI) to create a framework to ensure that the information on candidates’ criminal records was disseminated effectively.
• Lily Thomas v. Union of India (2013): The SC declared that any member of parliament or state legislative assembly who is convicted of a crime and sentenced to a prison term of two years or more would be disqualified from holding office. 
  • The court also declared that a convicted lawmaker could not contest an election or continue as a member of the legislature while the appeal was pending.
• Association for Democratic Reforms v. Union of India (2002): The SC directed the ECI to issue guidelines to ensure that candidates with criminal records were not given tickets to contest elections by political parties. 
  • The court ordered that candidates must disclose their criminal records in their nomination papers.
• Manoj Narula v. Union of India (2014): The Delhi High Court held that a person cannot be disqualified from contesting elections merely because they have been charged with a criminal offense. 
  • However, the court also held that political parties must not field candidates who have a criminal background.

Charting the Path Forward: Focus on Mitigating the Challenges of Criminalization of Politics in India

• Checking the Nexus Between Crime, Money And Muscle Power: The growing dependence of political parties on criminals for muscle power and “electability” must be stopped. 
  • Parliament, judiciary and executive will have to find common ground to put firm mechanisms in place to deal with increased criminalisation of politics.
• Strengthening of legal framework: Candidates against whom charges have been framed in court for serious offenses should be disallowed from participating in elections by making an amendment to the RPA,1951.
• • The 244th Law commission recommends disqualification at the stage of framing of charges, accompanied by other legal safeguards.
• Fast tracking trials: Expediting the judicial process through a time-bound justice delivery system is needed.
  • This will prevent politicians from using their power to delay or manipulate the legal process.
• Electoral Reforms: The electoral process should be reformed to prevent criminal elements from getting elected. 
  • Mandating the political parties to disclose the criminal records of their candidates,  stricter election funding rules, and increased monitoring of political campaigns.
  • It is necessary to strengthen the ECI by providing it the powers to regulate the actions of the political parties with specific emphasis on scrutiny of the candidate’s application.
  • This practice is prevalent in Germany, Portugal and Spain and needs to be studied and replicated to suit the Indian socio-political conditions.
  • Providing Statutory Status to  the Model Code of Conduct will help in curbing criminalization of politics.
• Internal Democracy In Political Parties: Convicted politicians may continue to influence law-making by controlling the party and fielding proxy candidates in the legislature.
  • Although the RPA 1951 disqualifies a sitting legislator or a candidate on certain grounds, there is no regulation over the appointments to offices within the party.
• Public Awareness: An awareness program for voters, to make them aware of their right to know the criminal background of the person to whom they are going to cast their votes.
  • This can be done through the media, civil society organizations, and educational institutions.

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