Decriminalisation of politics: What SC has said

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Decriminalisation of politics: What SC has said

Saturday, 15 February 2020 | S JYOTIRANJAN

The victory of AAP in the Delhi polls is by and large viewed as a genre of almost different kind of politics, in a sharp departure from caste, regional, religious and ethnic considerations. It was fought on development agenda. But it is no different from the other elections on the major count of criminal elements in politics.

If the report of Association of Democratic Reforms (ADR) is to be believed, then more than half the candidates had criminal cases against them.  As per a report, "There has been a sharp jump in the number of MLAs with registered criminal cases. In 2020, 43 MLAs declared criminal cases against them while in 2015, 24 MLAs had criminal cases. The number of MLAs with serious criminal cases, which included rape, attempt to murder and crimes against women, is 37".

In the meantime, the Supreme Court had adjudicated on the contempt petitions pertaining to the criminalisation of politics in India and the non-compliance of the directions of a Constitution Bench of Supreme Court in Public Interest Foundation and Ors. v. Union of India and Anr. (2019)  with respect to decriminalisation of politics. The directions were passed by a bench comprising of Justices R F Nariman and Ravindra Bhat. Mainly the contempt petitions were filed before the Supreme Court on the grounds that its directions were not implemented in the subsequent Assembly elections and the general elections since the Election Commission of India did not amend the Election Symbols Order and the Model Code of Conduct.

In this case, the court took note of the fact that over the last four general elections, there has been a disturbing influence of criminals in politics. While 24 per cent of the Members of Parliament had pending criminal cases in 2004; that went up to 30 per cent in 2009, 34 per cent in 2014 and 43 per cent in 2019. Further, the court was intrigued by the issue as to why the persons with criminal antecedents are being selected by political parties as candidates.

On this a point very interesting set of directions were issued by the court in exercise of Articles 129 and 142 of the Constitution of India. As per the directions it is now mandatory for political parties to upload on their website about detailed information of the candidates which shall include pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned court, the case number etc.), along with the reasons for such selection and as to why other individuals without criminal antecedents could not be selected as candidates.

Now, for following such directions, the parties shall also make public about the qualifications, achievements and merit of the candidate concerned, and not merely "winnability" at the polls. And such information shall also be published across print, electronic and social media platforms.  And again this is not a toothless direction of the court but of consequences, as it was directed therein that if a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of court's orders/directions.

While passing such directions the court has most significantly remarked that, “the candidates must be selected on the basis of merit and achievement. The reasons for selecting a candidate must be published by the party." It further remarked, "Winnability cannot be the only reason for selecting a candidate with criminal antecedents.”

A study by ADR showed that, from 2009 to 2019, there has been an increase of 231 per cent in the number of candidates with declared cases of crime against women contesting in Lok Sabha elections. For the same period, there has been an increase of 850 per cent in the number of MPs with declared cases of crime against women in the Lok Sabha.

As per the same study, 76 lawmakers across the country have declared cases related to crimes against women. A total of 572 candidates with such cases registered against them have contested Lok Sabha, Rajya Sabha and Assembly elections in the last five years. And as many as nine lawmakers have declared cases related to rape, out of them three lawmakers are MPs and six are MLAs.

According to experts, such disclosures might not achieve intended consequence, as the electorate is well aware about the criminal antecedents of the candidates contesting elections. The reason behind such behaviour of the electorate is best put by Milan Vaishnav author of  ‘When Crime Pays: Money and Muscle in Indian Politics’, "Voters are voting for criminal candidates ... despite their criminal involvement. Voters are aware of the background of the people they are voting for. They are not ignorant. But they are making a calculation that these are the people who can best represent our interest".

But the underlining truth is, what the electorate fails to understand is that, criminal elements in politics may well represent some petty causes concerning them, but this has adversely affected the quality of policy making, and has enhanced nepotism, cronyism and corruption which has a tremendous regressive effect on national growth and development. And at times, it creates an atmosphere of intimidation that most undemocratically muzzles voices of dissent.

(The writer is a lawyer and he can be reached at

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