The recent judgments of the Supreme Court on ‘curbing criminalization in politics’ has left this nation both, abandoned and disappointed. Where one cannot disregard the fact that Indian judicial system in the past had tried to resuscitate free and fair elections through various judicial pronouncements, this time Apex Court has sadly missed out on some very significant opportunities to weed out criminals from our electoral process. As a matter of fact, such pronouncements will not only fail in curing the menace but will also give leverage and unimpeded entry to the culprits into our electoral and political sphere. 

SC directions and why such directions are not enough? 

1. On 13th February, 2020 the Supreme Court had directed political parties to list out reasons on their website including their social media platforms for nominating candidates with criminal background within 72 hours of the selection of such candidates.
2. On 25 September, 2018 the Supreme Court had directed political parties and candidates with criminal antecedents to publish the details of their criminal cases at least on three different dates from the date following the last date of withdrawal of candidatures and upto two days before the date of poll.
3. On 1st November, 2017 the Supreme Court had ordered setting up of Special Courts to deal with 1581 cases involving MPs and MLAs as declared at the time of filing of the nomination papers for the 2014 elections. Eleven states have set up 12 special courts. There are two in Delhi and one each in Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar West Bengal, Maharashtra and Madhya Pradesh.
4. On 10th March, 2014 Supreme Court directed all High Courts to set up fast-track courts to conclude trial against sitting MPs and MLAs who have charges framed against them for the offences specified under Section 8(1), 8(2) and 8(3) of the RP Act, within one year from the date of the framing of charge(s).

Five rebuttals of the directions given by the Supreme Court: 

Whereas many have hailed these pronouncements as a step towards reforming our electoral and political process, however, the Apex court has undeniably overlooked five crucial aspects. First, Supreme Court directions can only be termed as a step towards making our so-called politicians and parties conscious of their actions or to give voters a chance to make an informed choice. But history has echoed quiet audibly that political parties or politicians have no conscience. Moreover, wasn’t it done way back in 2002/2003 when affidavits requiring details of criminal, financial and educational background of the candidates contesting elections (Form 26) were introduced for the first time through a petition filed by Association for Democratic Reforms? Politicians are not even diligently or properly furnishing each and every information as required under Form 26 or without constant reminders and warnings by the Election Commission of India. The doors of Supreme Court have been knocked innumerable times in the past so that candidates start taking Form 26 seriously. Even in relation to the recent SC orders on publication of criminal cases, political parties have not taken these orders very seriously. On 13th February, 2020, the Supreme Court in a contempt petition had reprimanded political parties for failing to publish the details of criminal cases pending against the candidates selected by them with reasons for selection of such individuals. This is the psyche of our political class.  

Second, setting up of special courts, fast-track courts, dissemination and wider publication, all this infrastructure requires money. As per the data available in the website of ‘Department of Justice’ the total amount spent by Government of India for operational expenses of such Special courts for Financial Year 2019-20 was Rs. 2,27,50,000 for Andhra Pradesh, West Bengal, Karnataka, Madhya Pradesh, Uttar Pradesh, Tamil Nadu and Telangana. For first and second quarter of the Financial Year 2018-19, the amount spent on Special courts was Rs 1,78,74,000 each whereas for third and fourth quarter it was Rs. 3,27,69,000 for the states of Andhra Pradesh, Tamil Nadu, Telangana, Karnataka, Kerala, West Bengal, Bihar, Madhya Pradesh, Maharashtra, Uttar Pradesh and Delhi. 

https://doj.gov.in/page/special-courts-trial-criminal-cases-against-mps-and-mlas. It is high time that we do some pondering and realize that instead of spending a tax payers hard earned money to reform the society and country at large, the governments, past-present-future; the institutions and authorities, who have taken an oath to uphold the ‘Rule of Law’ are rather busy in spending this hard earned money to further the greed of our leaders and parties, one way or the other. Why should we be concerned about setting up of such courts and related infrastructure when it would be simpler to just ban the entry of ‘muscle and mafia’ in the first place?  Besides, there is no information about the status or outcome of such pending cases. 

Third, functioning of our political class can only be regulated by adopting stringent measures. Mere warnings will not help the cause. Problem of criminalization can be tackled if such tainted candidates are outrightly banned from entering the electoral process based on both stage and degree of crime. This can be achieved by disqualifying candidates against whom ‘charges have been framed by court’ in offences falling under Section 8(1), (2) & (3) of the Representation of People Act, 1951.  It is an inveterate fact that reforms cannot be left to the wisdom of our leaders. Even in 2015 the Supreme Court had left it to the wisdom of Prime Ministers and Chief Ministers of the State to not appoint ministers in their cabinet with criminal background. Since 2015, the crime rate in the legislative offices has only escalated further. Recently, the Madras High Court in its order dated 13-08-2020 has not only asked the Central Government to “enact a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures” but has also emphasized that “the Central Government has to come out with a comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State Legislatures and local bodies”.

Fourth, Let’s face it; the Executive and the Legislature are most reluctant to undertake any kind of electoral or political reform because of the obvious bias and prejudice. It is only persons of strong character and vision that should foray into the electoral process. Dr. Rajendra Prasad, President, Constituent Assembly of India in his speech on 26th November,1949 had stated, “If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country”. Sadly, in Indian Political System, such stipulation holds no ground.  As a matter of fact, the political establishments have completely disregarded or intentionally side-lined the reforms suggested by various committees, citizens and civil societies. It is on record that various recommendations given by several committees dated as back as 1999 are lying in the back burner. Vohra Committee Report, 1993; The 170th Report of Law Commission of India on Reforms of the Electoral Laws (1999); National Commission to Review the Working of the Constitution, 2000; The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (2007); Ethics in Governance Report: Second Administrative Reforms Commission,2007; The 244th Law Commission of India Report on Electoral Disqualification; Justice J.S Verma Committee Report on Criminal Law Amendment; are few of these Commissions which had repeatedly emphasized the need to weed out criminal elements from politics but have been quiet conveniently overlooked by various governments in the last 20 years. 

Finally, by ordering the formation of Fast track and Special courts the Supreme Court of India has ignored the plight, adversities and miseries that the under-trials are being subjected to since the inception of criminal jurisprudence. Isn’t such a special treatment by creating Fast-track/Special Courts against the principles of ‘Rule of Law’, ‘Equal Protection of Laws’ and ‘Right to Equality’? In July, 2019 five Kashmiri prisoners were released by Rajasthan High Court after 23 years of imprisonment without any bail or parole. This is just one incident. As per a report released by Hindustan times, two of three prisoners in Indian jails are under-trials.  As per the data released by ‘National Crime Records Bureau’ (NCRB) in its report titled “Prison Statistics India” as of 2017, a total of 13,143 under trial prisoners have confinement of 3 to 5 years. How can this be a solution where only a tax paying law-abiding common man is at the receiving end. Isn’t it guarding the high and mighty? 

Magnitude of problem: 

How can such a strong criminal-political-bureaucratic nexus in our electoral and political process be confronted by mere hypothetical hopes? Criminal elements have been playing a major role in the electoral process in India both as candidates for elections and as party workers. The fundamental reason why candidates with money and muscle power are able to dominate politics is because no political party has seriously pursued electoral and political party reforms. It effects their self-seeking goals which they clearly don’t want. An estranged voter, meanwhile has either been alienated or become cynical and no longer really expect good governance. As per the data analysed by Association for Democratic Reforms, 43% of the current Lok Sabha MPs have declared cases against them and 29% have declared serious criminal cases. 24% Rajya Sabha MPs have declared criminal cases out of which 12% have declared serious criminal cases against them. There are 11 MPs who have declared cases relating to murder, 33 have cases related to attempt to murder. There are 8 MPs have declared cases related to kidnapping and 13 related to robbery. Our MLAs are also not far behind in this race. We have 45 MLAs who have declared cases related to murder whereas 181 have declared cases related to attempt to murder. There are 49 MLAs accused of kidnapping. Even in Bihar which is gearing up for Assembly elections, 56% of the current MLAs have declared criminal cases and 39% have declared serious criminal cases against them.

As per the report released by ADR on ‘Crimes against Women’ from 2009 to 2019, there has been an increase of 231% in the number of candidates with declared cases of crime against women contesting in Lok Sabha Elections. From 2009 to 2019, there has been an increase of 850% in the number of MPs with declared cases of crime against women in Lok Sabha. There are 18 MPs and 58 MLAs who have declared cases related to crimes against women. We have 3 MPs and 6 MLAs who have declared cases related to rape. In the last 5 years, recognized parties have given tickets to 41 candidates who had declared cases related to rape. 

Immediate need of the hour: 

It is not merely a prophetic duty of the courts to remind the key duty holders of their role, but it is also their constitutional prerogative to make sure that such duties are discharged conscientiously by preserving, protecting and defending the Constitution. The only way to remedy the existing problem of criminalization is to immediately act upon the plausible solutions offered by various committees, civil society and citizens. Supreme Court of India being the ultimate custodian of “Justice and Rule of Law” should reprimand political parties and politicians for their complete lack of will, reprehensible predilection and absence of required laws. Let there be another Lily Thomas Case verdict when convicted MPs and MLAs were disqualified from holding membership. Therefore, without losing another twenty years, the Supreme Court should immediately order;  

• Permanent disqualification of candidates convicted for heinous crimes like murder, rape, smuggling, dacoity, kidnapping etc. 
• Disqualification of candidates against whom “charges have been framed” by court of law in offences falling under Section 8(1), (2) &(3) of the Representation of People Act,1951.

• Disqualification of candidates furnishing false information in the election affidavit. 
• Cancellation of tax exemptions given to the political parties who deliberately field such tainted candidates. 
• Bring political parties under the ambit of Right to Information Act.