Introduction :- 

According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples Act (RPA) from contesting elections only after their conviction in a criminal case. The current verdict was pronounced on a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.

In Public Interest Foundation Case a five-judge Constitution bench headed by Chief Justice issued directions aimed at decriminalisation of politics.

Legal and Judicial Provisions :-

• Article 102(1) and 191(1) disqualifies an MP and an MLA respectively on certain grounds
• Section 8 of the Representation of People Act, 1951, bans convicted politicians. But those facing trial, no matter how serious the charges, are free to contest elections.
• The Supreme Court in Lily Thomas case (2013) held that chargesheeted MPs and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
• In March 2014 SC judgment, court directed all subordinate courts to give their verdict on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court. Progress in this matter has not been reviewed.

Supreme Court Observations and Recommendations :-

• Problem of criminalisation of politics is “not incurable” but requires urgent attention before it becomes “fatal” to the democracy.
• The Apex court recommended that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.
• The Court directed disclosure of criminal cases pending
  against the candidate by himself/herself through Election Commission of India and his/her political party.
• Moreover the criminal antecedent of candidates must be widely publicized through different media including the websites of concerned political parties.
• Court also made observations on political parties. The SC said that it is the political parties that form the government, man the parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties.

Reasons for Criminalisation of Politics :-

• Vote Bank: As the SC has observed that we as a voter are not yet organically evolved, therefore, majority of the voters are maneuverable, purchasable. Expenditure for vote buying and other illegitimate purposes through criminals leads to nexus between politicians and criminals.
• Corruption: In every election all parties without exception put up candidates with a criminal background. The general trend is that these candidates are elected to office. Institutionalization of corruption
  and failure to deal with corruption has bred contempt for the law. This, combined with the criminalization of politics, flourishes the corruption. The past three Lok Sabhas have seen an increasing number of legislators with criminal background or pending cases against them — 124 in 2004, 162 in 2009 and 182 in 2014.
• Loop Holes in The Functioning of Election Commission: For the past several general elections there has existed a gulf between the Election Commission and the voter. Common people hardly come to know the rules made by the commission. Model Code of Conduct is openly flouted by candidates without any stringent repercussions.
• Denial of Justice and Rule of Law: Toothless laws against convicted criminals standing for elections further encourage this process. In December 2017, the Government announced to set up 12 fast-track courts across the country to try criminal cases pending against sitting MPs and MLAs. 40 percent of pending cases have been transferred to special courts — of which judgments have been pronounced in just 136 cases (11%).
• Though the Representation of the People Act (RPA) disqualifies a sitting legislator or a candidate on certain grounds, there is nothing regulating the appointments to offices within the party. A politician may be disqualified from being a legislator, but he may continue to hold high positions within his party, thus also continuing to play an important public role which he/she has been deemed unfit for by the law. Convicted politicians may continue to influence law-making by controlling the party and fielding proxy candidates in legislature.

Impact of Criminalization :-

• The law-breakers get elected as law-makers- The people who are being tried for various offences are given the opportunity to make laws for the whole country, which undermines the sanctity of the Parliament.
• Loss of public faith in Judicial machinery- It is apparent that those with political influence take advantage of their power by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions to stall any meaningful progress. This questions the credibility of the judiciary.
• Tainted Democracy: Where the rule of law is weakly enforced and social divisions are rampant, a candidate’s criminal reputation could be perceived as an asset. This brings in the culture of muscle and money power in the politics.
• Self-perpetuating: Since the parties focus on winnability of the candidate (also hampering the inner party democracy), they tend to include more and more influential elements. Thus, criminalization of politics perpetuates itself and deteriorates the overall electoral culture.

Way Forward :- 

• There is a need to curb the high cost of campaigning to provide a level playing field for anyone who wants to contest elections.
• As recommended by the Law Commission of India’s report on Electoral Disqualifications, by effecting disqualification of tainted politicians at the stage of framing of charges, with adequate safeguards, the spread of criminalisation of politics may be curbed.
• Filing of a false affidavit should qualify as a ‘corrupt practice’ under the Act. Conviction on the charge of filing of a false affidavit must be grounds for disqualification as recommended by the Law Commission.
• The Election Commission must take adequate measures to break the nexus between the criminals and the politicians.
• There are provisions in the Representation of the people Act, 1951 to punish candidates and parties for misuse of religion and other unlawful elements in elections, unfortunately these provisions are not effectively enforced because of lack of political will and prolonged legal battles and litigation.