The Indian Supreme Court's order on February 13—making it mandatory for political parties to put on public domains like Facebook and Twitter the criminal cases that have been lodged against their candidates contesting elections, and to justify the giving of nominations to them once again—has moved the spotlight onto a major area of concern in the country's electoral democracy: the growing criminalisation of politics.

In a recent report, rights group Association of Democratic Reforms pointed out how nearly half of the 542 Lok Sabha lawmakers elected last year have declared criminal cases against them, as shown in their mandatory affidavits. It noted a sharp increase—within the decade since 2009—in elected parliamentarians with cases against them for serious criminal acts, including murder and rape. In their latest report on the Delhi assembly polls held on February 8, it found that 37 of the 70 legislators are facing serious criminal cases.

The apex court, in its February 13 order, noted that in 2004, 24 percent of the members of parliament had criminal cases against them, and that figure went up to 30 per cent in 2009, 34 per cent in 2014 and 43 per cent in 2019. What the latest court order has done is to provide a legal compulsion after the Election Commission had earlier proposed that political parties must go public with an explanation for fielding candidates with criminal cases against them. What is significant about the February 13 order is that it also sought to make the parties accountable for choosing people with criminal antecedents as their candidates, and not untainted people. The significance of the order lies in the fact that parties often resort to citing the "winability" factor of a candidate as its justification for choosing him or her for the poll.

The criminalisation of politics has, for long, remained a matter of worry. The Election Commission and the judiciary have, from to time, taken steps to deal with this problem. The Supreme Court in 2013 scrapped a loophole in the Representation of People Act (RPA), which gave a convicted lawmaker the power to remain in office on the grounds that appeals have been filed within three months of conviction, and held that the lawmaker shall be disqualified from the date of conviction. Secondly, not too long ago, the Supreme Court ordered the setting up of special courts to speed up the trial of lawmakers and legislators. The total number of lawmakers in the bicameral parliament and the state assemblies is pegged at 4,896.

While the leaders of various parties have, by and large, welcomed the apex court's February 13 order to make public the details of criminal cases against their candidates, they are not happy with the direction to justify the choice of such candidates. CPI(M) General Secretary Sitaram Yechury was quoted as saying that courts "cannot dictate on the internal affairs of a party." Senior Congress leader and lawyer Ashwani Kumar told The Indian Express that "credentials about leadership are to be established or negatived in the people's court and not by judicial diktats" and "whether legislative lassitude and executive lethargy on such issues can justify the court's binding policy prescriptions on matters quintessentially political is highly disputable".

Another difficulty that may be encountered with regard to the court order is that there are times when criminal cases are filed against politicians with a political motive. A solution to this difficulty may be overcome by speedy trial, even though this is often wishful thinking, given the pace of the judicial process.

Will the Supreme Court's February 13 order have a deterrent effect? Former Chief Election Commissioner SY Quraishi pointed to the fact that the number of lawmakers with criminal cases went up in last year's Lok Sabha elections. The question that arises is: if the law cannot put a blanket ban on candidates with criminal cases contesting elections, why should political parties refrain from putting them up as their nominees?

There is a view that putting details about criminal cases against candidates on the parties' official websites and social media platforms only have the effect of "naming and shaming" them and may not be enough to tackle this problem. It is felt that only parliament can enact legislation to ensure that people with criminal antecedents, particularly with cases of heinous crimes against them, are not to allowed to enter the electoral fray and enter public life. But can this happen if there are already lawmakers with criminal cases against them? There is also the question of whether such a ban is feasible, especially when criminal charges are at times levelled against political rivals with political motives.

In fact, it has already been suggested by some that the judiciary seeking an explanation from parties for its choice of candidates with criminal antecedents, however well-intentioned it is, runs the risk of over-stepping its jurisdiction. It has also been argued that it is the voters who, through their "well-informed" assessment, will decide on whether to elect a person with criminal antecedents. One answer to this line of argument is that, shouldn't the judiciary act when the legislature fails or the Election Commission is not empowered enough to take tough calls? In any case, it is the higher judiciary that is the arbitrator whenever the decisions of the Commission or laws passed by elected legislatures are challenged, even though it is true that the legislature has the power to get around any judicial verdict through suitable legislations.

One may go on endlessly debating the number of ways to curb or stop criminalisation of politics. But the problem will remain intractable as long as the culture of impunity, under which parties field tainted candidates in election after election, continues. That culture must end irreversibly.


Pallab Bhattacharya is a special correspondent for The Daily Star. He writes from New Delhi, India.

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