Context:

The Supreme Court has taken a timely decision by agreeing to hear a plea from the Election Commission of India (ECI) to direct political parties to not field candidates with criminal antecedents.

The immediate provocation is the finding that 46% of Members of Parliament have criminal records.

While the number might be inflated as many politicians tend to be charged with relatively minor offences “unlawful assembly” and “defamation” the real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.

A third of Indian MPs have criminal cases pending:

• About 30 per cent of members in the lower house of parliament have criminal cases pending against them.
• The report by the Association for Democratic Reforms (ADR) and the National Election Watch (New) is based on affidavits filed by candidates during elections since 2004.
• The analysis found that a candidate with a clean record has 12 per cent chance of winning the election whereas for a candidate with a criminal record, the chance of winning is 23 per cent.
• The report found that 162 (30 per cent) of the 543 current Lok Sabha (lower house) members face “criminal cases” and 76 others (14 per cent) “serious criminal cases”.
• About 40 (17 per cent) of the 232 members from the upper house, the Rajya Sabha, have “criminal cases” and 16 others (7 per cent) have “serious criminal cases” filed against them.
• The independent agencies also analysed the records 62,847 candidates who stood for either parliamentary or state assembly elections since 2004, including 4,181 who contested more than one election.
• Out of 4,181 repeat candidates, 1,072 had a criminal case the first time they contested an election and 788 cases had the second time also.
• This goes to show that political parties gave tickets to 74 per cent of candidates with criminal records second time despite knowing their criminal background.
• India’s supreme court ruled earlier that elected politicians would be disqualified from office immediately upon being convicted of a crime.
• Convicted politicians were earlier allowed to stay in office while their appeals were being heard in higher courts.

Supreme Court rulings with respect to Criminal records in Politics:

The Supreme Court has come up with a series of landmark judgments on addressing this issue.

• Supreme Court removed the statutory protection of convicted legislators from immediate disqualification in 2013, and in 2014, directed the completion of trials involving elected representatives within a year.
• In 2017, it asked the Centre to frame a scheme to appoint special courts to exclusively try cases against politicians, and for political parties to publicise pending criminal cases faced by their candidates in 2018.
• But these have not been a deterrent to legislators with dubious credentials.
• Perhaps what would do the trick is a rule that disallows candidates against whom charges have been framed in court for serious offences, but this is something for Parliament to consider as an amendment to the Representation of the People Act, 1951.
• This denouement, however, is still a pie in the sky given the composition of the Lower House with a number of representatives facing serious cases.
• Ultimately, this is a consequence of a structural problem in Indian democracy and the nature of the Indian state.

Narrow prism views by some voters:

Researchers have found that such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.

Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.

Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.

Either way, these unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.

‘Cleansing Parties’ is the need of the hour:

The judgment had urged Parliament to bring a “strong law” to cleanse political parties of leaders facing trial for serious crimes.

The ruling by a five-judge Bench led by then Chief Justice of India concluded that rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” the political parties.

The court had suggested that Parliament frame a law that makes it obligatory for political parties to remove leaders charged with “heinous and grievous” crimes like rape, murder and kidnapping, only to a name a few, and refuse ticket to offenders in both parliamentary and Assembly polls. The nation eagerly awaits for such a legislation.

It had also issued guidelines, including that both the candidate and the political party should declare the criminal antecedents of the former in widely-circulated newspapers.

Conclusion:

Electoral reforms refer to the initiatives undertaken with an objective to strengthen the electoral processes. They are necessary due to the dynamism displayed in the politics of India.

Bringing about reforms from time to time is necessary in order to establish India as a democratic republic as outlined in the preamble and other constitutional principles.

While formally, the institutions of the state are present and subject to the electoral will of the people, substantively, they are still relatively weak and lackadaisical in governance and delivery of public goods, which has allowed cynical voters to elect candidates despite their dubious credentials and for their ability to work on a patronage system.

While judicial pronouncements on making it difficult for criminal candidates to contest are necessary, only enhanced awareness and increased democratic participation could create the right conditions for the decriminalisation of politics.