Criminal cases of candidates and the laws to deal with them continue to be ineffective - Part 1

The SC recently directed parties to disclose reasons for selection of candidates with pending criminal cases. Like previous directions of the Supreme court, these are not really making any difference.

In a recent judgement passed by the Supreme Court (SC) on 13 February 2020 in Public Interest Foundation vs Union Of India, political parties have been directed to publish criminal antecedents of contesting candidates along with reasons for fielding each one of these candidates, notwithstanding their ‘winnability’. The Election Commission of India (ECI) has also issued a directive to implement the apex court’s orders concerning criminal antecedents of candidates.

While the judgement is a step towards ensuring accountability and transparency in politics, the SC has issued similar directions over the past few years. In this article, we take a stock of the major judgements delivered by courts, important reports on electoral reforms and persistent challenges against the growing criminalisation of politics in India.

Data on Criminalisation of Politics

The Association for Democratic Reforms (ADR), established in 1999, has been conducting detailed analysis of the backgrounds of candidates contesting elections. ADR has conducted Election Watches for almost all state and parliament elections in collaboration with the National Election Watch. In ADR’s report for Lok Sabha 2019 elections titled ‘Analysis of Criminal Background, Financial, Education, Gender and other details of Winners’, the trend in winners with declared criminal cases has been recorded for 3 consecutive Lok Sabha elections.

Lok Sabha 2019: Out of the 539 winners analysed for Lok Sabha 2019, 233 (43%) Winners have declared criminal cases against themselves. 159 (29%) winners have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc.

The chances of winning for a candidate with criminal cases in the Lok Sabha 2019 elections were 15.5% whereas for a candidate with a clean record it is 4.7%.

Lok Sabha 2014: Out of the 542 winners analysed during Lok Sabha 2014 elections, 185 (34%) winners have declared criminal cases against themselves. 112 (21%) winners have declared serious criminal cases including cases related to murder, attempt to murder, communal disharmony, kidnapping, crimes against women etc.

The chances of winning for a candidate with criminal cases in the Lok Sabha 2014 elections were 13% whereas for a candidate with a clean record it is 5%.

Lok Sabha 2009: Out of 521 winners analysed during Lok Sabha 2009 elections, 158 (30%) winners had declared criminal cases against themselves. 77 (15%) winners had declared serious criminal cases against themselves.

During the last few decades, several committee reports have also pointed out the growing criminalisation of Indian politics and its implications. Starting with Goswami Committee on Electoral Reforms (1990) that addressed the need to curb the growing criminal forces in politics, the report of Vohra Committee Report (1993) reveals several alarming and deeply disturbing trends. It referred to several observations made by official agencies, including the CBI, IB, R&AW, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament.

On various occasions, the courts have also recognised that the nexus between politicians, bureaucrats and criminal elements in our society has been on the rise, the adverse effects of which are increasingly being felt on various aspects of social life in India. In the 18th Report presented to the Rajya Sabha on 15 March 2007, by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on Electoral Reforms acknowledged the existence of criminal elements in the Indian polity which hit the roots .

Major Judgements on Voter’s Right to Know

Date of Judgement	Highlights of the Judgement
13 February 2020 Public Interest Foundation v. Union of India	Various litigants filed contempt petitions against the EC for not monitoring whether political parties were complying with the directions issued in the 2018 Public Interest Foundation v. Union of India judgement. The Bench re-iterated the Court’s 2018 directions and directed the Election Commission to report to the Supreme Court any non-compliance by political parties. It also directed political parties to publish additional information like reasons for selecting a candidate with pending criminal cases.
25 September 2018 Public Interest Foundation v. Union of India	First, the SC decided that it cannot disqualify candidates, against whom criminal charges have been framed, from contesting elections. The Court recommended that Parliament make laws to curb the increasing criminalisation of politics. Second, the SC issued directives to the Election Commission, which in turn mandated the political party as well as candidate with criminal antecedents to publish information on website, newspapers and through television channels on three occasions during the campaign period, before the election. Refer to Factly’s earlier article for further details.
13 March 2003 People’s Union for Civil Liberties v. Union of India	Voters have a fundamental right to know relevant information about candidates. A section of law (Section 33B of PRA) stating that candidates could not be compelled to disclose any information about themselves other than their criminal records was unconstitutional.
2 May 2002 Association for Democratic Reforms v. Union of India; and People’s Union of Civil Liberties & Anr. v. Union of India & Anr.	The verdict established the filing of affidavits by candidates as the right of the voter. The SC held that the right to information – the right to know antecedents, including the criminal past, or assets of candidates – was a fundamental right under Article 19 (1) (a) of the Constitution and that the information was fundamental for survival of democracy. It directed the Election Commission to call for information on affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers on: whether the candidate has been convicted / acquitted / discharged of any criminal offence in the past – if any, whether the candidate was accused in any pending case of any offenses punishable with imprisonment for two years or more, and in which charge was framed or cognizance taken by the court.