The recent direction of the Madras High Court to the Central Government requiring it to explain why it should not enact a law prohibiting people with criminal background from contesting in Parliamentary, Assembly and Local Body elections, has once again alerted and kept alive the most troubling issue of criminalization of politics. An analysis of the 2019 Lok Sabha election winners by the Association for Democratic Reforms, a non-governmental organisation, revealed that 43% (233 out of 539 Members of Parliament) had declared criminal cases pending against them and 29% of the legislators were facing serious criminal indictments. 

This is an indication of the absence of a comprehensive legislation regulating this endangering political and social phenomenon. Evidently, Court cannot legislate or play the role of Parliament and that legislation should always emanate from the legislature. However, the ‘little man’ cannot be made to suffer on account of the lethargy, indifference and slackness of the lawmakers and policymakers in attending to this serious cause, which has now blown to such disastrous levels offending the very foundation of the democratic system.

The Politics of Crime Syndicates:

A criminal generally begins the journey at local level with petty crimes. In big cities, he begins with country liquor, gambling, betting and so on. The politicians use criminals for their selfish ends and in turn the criminals and their syndicates seek their protection and patronage from politicians to carry on criminal and anti-social activities. The Vohra Committee (1993) categorically found that all over India crime syndicates have become a law unto themselves. The Report says: “The various crime syndicate major organizations have developed significant muscle and money power and established linkage with governmental functionaries, political leaders and others to be able to operate with impunity.”

The use of money or muscle power and the totally unacceptable practices of intimidating voters and capturing booths offend the very foundations of our socio-economic order. In the past, criminals usually worked behind the scene, but now apart from extending indirect help, they themselves contest the elections. This is nothing but derailment of the democratic polity train. 

The criminalization of politics has poisonous effect on the governance of law and order and criminal justice. The chances of procuring conviction of criminals in major offences have become increasingly difficult and often they get away with their sins of commission and omission. The political interference in the investigation process appears to crumble the criminal justice delivery system. Acquittals and lighter sentences in cases where the accused is found guilty of the offence equally make mockery of the system.

Dinesh Goswami Committee suggested that legislative measures must be taken to check booth capturing, rigging and intimidation of voters. In its 170th Report, the Law Commission of India recommended that in electoral offences and certain other serious offences, framing of charge by the Court should itself be a ground of disqualification, in addition to conviction. 

Supreme Court as the Guardian of Democracy:

While we are justifiably proud of our democracy, much needs to be done by the political parties from the stage of selection of candidates. The Supreme Court has been stern in its approach in preventing criminalization of politics so as to cleanse the system. Very recently in February 2020, the Court ordered political parties to publish the entire criminal history of the contesting candidates for Assembly and Lok Sabha elections, along with reasons that made them to choose those with criminal records over other candidates. In K.Prabhakaran case (2005), Court pointed out that the purpose of enacting disqualification under Section 8(3) of the Representation of the People Act is to prevent criminalization of politics.

Chief Justice R.C. Lahoti speaking for the majority observed: “Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the House – a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred and have no reservation from indulging into criminality to win success at an election.”

Convictional Disqualification:

The Supreme Court Judgment in Lily Thomas Case (2013) has not only set the standards for lawmakers and rulers but has also curbed the menace of criminalization of politics to a considerable extent, though not eternally resolved. Judgment of the apex court came at a stage when criminalization of politics had become an obnoxious cancerous growth proving lethal to electoral politics and democratic polity.
Purity and sanctity of electoral process, sine qua non for a sound system of governance, appears to have become a forgotten thing these days with the entry of large number of persons with criminal antecedents in the supreme legislative bodies.

Political parties out of their craving for political power and consequential benefits do not hesitate in giving tickets to those with criminal background and do not object to their help in winning the elections. Thus, politicization of criminals and criminalization of politics needs to be checked at any cost for the democracy to thrive. With the Judgment in Lilly Thomas case, the Court through a purposive and constructive interpretation of the provisions of the Representation of the People Act, 1951 recognized convictional disqualification as a powerful mechanism restricting entry of persons with criminal antecedents in the electoral scenario. It also derecognized the continuance of such disqualified persons as legislators.

Convictional disqualification for candidature appears to be an effective remedy. An order of remission also does not wipe out the conviction. For actual disqualification, what is necessary is the actual sentence by the court. It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the appeal. The suspension of the execution of the sentence (imprisonment of not less than two year) does not remove the disqualification. When a lower court convicts an accused and sentences him, the presumption that accused is innocent comes to an end.

The Court has also considered the question of the effect of acquittal by the appellate court on disqualification. It has now become the law with the decision in Prabhakaran’s case that the question whether a candidate is qualified or not or disqualified for being chosen to fill the seat has to be determined by reference to the date for the scrutiny of nomination. The returning officer cannot postpone his decision nor make it conditional upon what may happen subsequent to that date. Court has now taken the view that post-convictional disqualification would take into effect immediately and no additional layer of protection can be extended to sitting MPs and MLAs in this regard. These verdicts in the form of ‘temporary patchwork’ have filled the yawning gap in legislation and have helped in checking the criminalization of politics.

Inadequacies of Legislative Controls:

The courts in the country are well aware of the problem of criminalization of politics and have been making a call to the legislature to intervene and legislate, but politics is an area where even angels fear to tread and the courts do not want to overreach. There are provisions in the Indian Penal Code envisaged to check election evils but only nominal punishments have been provided and required interest is not taken in prosecution of election offenders. Once the election is over, usual thinking is to forget everything. Hence, legislative measures have failed to check meaningfully the criminalization of politics.

Way Forward:

Criminalization of politics is deeply disturbing and it closely concerns the entire nation. Politics cannot become the safest haven for criminals. Equally, rule of law cannot be replaced by the rule of politics. True, political parties are at the heart of parliamentary democracy. But the entry of criminals in election politics must be restricted at any cost. It is the silent form of emergency. It is described as ‘termite to the citadel of democracy’. If not checked, it will erode the foundations of democracy.

The dearth of talented persons in supreme legislative bodies and politics may virtually collapse the country internally as well as externally. A number of Commissions and Committees such as, the Law Commission of India, Election Commission, and Vohra Committee etc. have examined the issue of criminalization of politics. But the problem is aggravating without any tangible solutions to resolve this crisis confronted by the political system.

The Parliament has taken efforts by amending the Penal Code and the Representation of the People Act, but the exercise has proved futile. The Supreme Court has also shown activism to check the evil but the problem remains unabated. It is a fact that the Court has in unequivocal terms signaled to prevent criminalization of politics. It is not the last of the first or the first of the last. It has emphasized the higher political principle that those who break the law should not be allowed to make the law.

The roots of the problem lie in the political system of the country. There is lack of political will and consensus to combat the problem. The political parties also do not believe in higher ethical norms placed over them. They seldom stand united to address the issue of criminalization of politics. They also forget the proclaimed truth that ‘Be you ever so high, the law is above you’.

The way forward is to suitably amend the electoral laws. For every electoral offence, the minimum punishment should be not less than two years. In the Representation of the People Act, provisions should be incorporated to ensure that even suspects should not make entry into politics. The requirement of filing affidavit disclosing information in respect of pending criminal cases should be rigorously enforced, so that the voters would get a fair chance to learn about the antecedents of the candidates, and take an informed decision. Selection of candidates by the political parties requires review; must be based on qualifications, achievements and merit; and not merely looking at winnability at the polls.

In the midst of ever-deteriorating standards of politics, there is the need for setting up Special Courts for trying all categories of cases of criminalization of politics. Such a desirable step would definitely help to maintain sanctity and purity of elections and ensure free and fair elections. It is for the Parliament to legislate on electoral matters. Parliament is the radar of socio-economic growth of the nation. Parliament should consider enacting a strong and comprehensive law, making it mandatory for political parties to revoke the membership of persons against whom charges are framed in heinous offences and not to permit them from contesting in the elections. Indian politics should reinforce its ‘culture of integrity’ and ‘climate of social service’. Political parties should envision that what the country needs is lawmakers and not lawbreakers.