The issue of criminalisation creeping into our Indian polity has been a topic of debate for a long time. While dealing with a public interest litigation seeking a lifetime ban on convicted politicians from contesting elections, the top court recently directed High Courts across the country to file an affidavit indicating the number of criminal cases pending against MPs and MLAs for a period in excess of five years.
BJP leader and Advocate Ashwini Kumar Upadhyay approached the top court in 2016, seeking a ban for life on politicians contesting elections following conviction in criminal cases by declaring Section 8 of the Representation of the People Act, 1951 as ultra vires of the Constitution. He also sought expeditious trial of cases pending against tainted politicians as well as setting up of Special Courts to try cases against MPs and MLAs.
Section 8 of the Representation of the People Act, 1951, provides for disqualification from contesting elections for a period of six years to persons who have been convicted for not less two years or fined under any of the offences specified in the Section.
The apex court bench comprising Justices DY Chandrachud and Hima Kohli on October 10 also asked High Courts to indicate the number of judges allocated to conduct trials in such cases, the case load per judge and the steps taken to ensure expeditious conclusion of trials in these cases.
The Court also modified its August 10, 2021 order wherein it was directed that prior permission of the Court is necessary for transfer of judicial officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs. The development ensued on a request to that effect made by Senior Advocate Vijay Hansaria, the amicus curiae appointed to assist the Court in the matter. He submitted that a lot of applications were being filed by the respective High Courts seeking permission of the apex court for relieving judicial officers of the charge of the Special Court in the event of their transfer. Pursuant to this, the Court directed that High Courts are at liberty to order transfer of such judicial officers without seeking prior permission of the top court to that effect.
The apex court has been passing a slew of directions in the matter from time to time. In 2017, it directed the government to set up Special Courts to try cases involving political persons in order to expedite disposal of such cases. Accordingly, 12 Special Courts were set up by the government.
In 2018, the Court requested each High Court to allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as each High Court may consider proper. This was to ensure effective trial in these cases as a large number of them were pending against law-makers across the country.
In an important direction passed in August last year, curtailing the power of prosecutors to withdraw cases under Section 321 of the Code of Criminal Procedure, 1973, the Court directed that no prosecution against a sitting or former MP/MLA can be withdrawn without the prior sanction of the concerned High Courts. “The power under Section 321, Cr.P.C. is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilized with utmost good faith to serve the larger public interest,” observed the Court.
In addition, it requested High Courts to examine the withdrawals, whether pending or disposed of since September 2020.
Hearing the petition, the apex court had expressed strong displeasure over trial being pending in cases involving sitting or former legislatures in which a chargesheet was filed as far back as 2000 and directed for rationalising the establishment of Special Courts and expediting pending trials in these cases. The Court also asked the centre to constitute a monitoring committee to evaluate the reasons or delay of investigation in such cases.
In a report submitted by the amicus curiae in the matter, it was highlighted that more and more persons with criminal antecedents were occupying seats in Parliament and state legislatives, with the total number of criminal cases pending against sitting and former politicians rising to 4,984 in December 2021 as against 4,110 in December 2018.
The centre had earlier opposed the plea seeking imposition of a lifetime ban on convicted politicians from contesting elections saying that elected representatives are equally bound by provisions of law in force. “The elected representatives are ordinarily bound by oath that they have taken to serve the citizens of their constituency in particular and country in general. Their conduct is bound by propriety and good conscience. Elected representatives are not above the law and are equally bound by provisions of various statutes in force. Thus, no distinction between public servants and elected representatives,” stated the centre in its affidavit.
In 2018, the Supreme Court in Public Interest Foundation and Ors. vs. Union of India and Anr. ruled that politicians having criminal antecedents cannot be stopped from contesting elections by observing that “though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law”. The Court, however, asked the Election Commission to publish on its website information pertaining to the criminal antecedents of persons contesting elections to enable wise decision-making and informed choice by citizens.
“The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world’s largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country,” noted the bench headed by Chief Justice of India Dipak Misra.
In 2000, the top court in Association for Democratic Reforms vs. Union of India mandated the disclosure of all information pertaining to the criminality of persons contesting elections to enable citizens to make a “right choice”. “For making a right choice it is essential that the past of the candidate should not be kept in dark as it is not in the interest of the democracy and well being of the country. The antecedents of a person standing for election must be placed under public gaze and that is possible only when all wraps covering information about him are cast away,” observed the Court.
The issue of criminalisation of politics has been a topic of discussion in various committee reports too. The 1990 Goswami Committee Report on Electoral Reforms highlighted the role of money and muscle power in elections in deflecting well-accepted democratic values and ethos. In 1993, the N.N. Vohra Committee was constituted to study the problem of criminalisation of politics and the nexus among criminals, politicians and bureaucrats. The Report revealed that agencies like CBI, IB, R&AW had unanimously expressed their opinion on the criminal network which was virtually running a parallel government.
The 18th Report presented to the Rajya Sabha in 2007 by a Parliamentary Standing Committee also acknowledged the existence of criminal elements in the Indian polity which had hit the roots of democracy. It observed that politics should be cleansed of persons with established criminal backgrounds.
Furthermore, the 244th Law Commission Report said that 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.
For democracy to survive, it is time for the government to come up with a strategy to ensure that the best person is chosen as the people’s representative for effective governance.
—By Banshika Garg and India Legal Bureau