India: When criminals enter politics

India’s Supreme Court (SC) on Tuesday declined to interfere in a plea seeking to debar candidates facing criminal charges from contesting elections. But it urged Parliament to enact a law to address the malaise of criminals entering legislatures.

The apex court said it could not add any further disqualification to the law. At the same time, it directed political parties to post on their websites full details of the criminal charges the candidates they are fielding in elections were facing. The information should also be publicised in the media.

What is the Supreme Court verdict about?

The verdict was pronounced on a batch of pleas raising a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.

To sum up, we hold that the provisions of the Advocates Act of 1961 and the Bar Council of India Rules framed thereunder do not place any restrictions on the legislators to practise as advocates during the relevant period. [But] it is one thing to take cover under the presumption of innocence of the accused, but it is equally imperative that persons who enter public life and participate in law-making should be above any kind of serious criminal allegation…The complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizens.”

 - Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud | Indian Supreme Court Bench, pronouncing the judgement

The petitioners pointed out that trials in cases involving politicians were deliberately delayed, and therefore, several lawbreakers entered the legislature and became lawmakers.

What is the current situation regarding contesting elections by people with criminal cases pending against them?

The status before the filing of these petitions was that lawmakers were barred under Representation of Peoples (RP) Act from contesting elections only after their conviction in a criminal case.

What did the court say?

A five-judge Constitution bench headed by Chief Justice Dipak Misra said that decriminalisation of politics was an important issue but “it cannot make laws” on the same.

The court said that each contesting candidate must state in bold the criminal cases pending against him/her in the forms to be filed up at the time of filing nomination papers. Every political party must be informed about pending criminal cases and the party’s website should have these details. The court said that the citizens have a right to be informed about the antecedents of their candidates.

“The direction to compel political parties to go public about their criminal candidates is a step to foster and nurture an informed citizenry and to protect the culture and purity in politics,” the court observed.

The Chief Justice said it was the duty of Parliament to keep money and muscle power at bay.

“Parliament should cure the malignancy and it is not incurable before it becomes fatal to democracy. National interest demands Parliament enacts such legislation and the country awaits such legislation. The Parliament must make law to ensure candidates with criminal antecedents don’t enter public life and take part in law making. It is the responsibility of all to enforce the law,” the Chief Justice said.

The court said it was one thing to take cover under the presumption of inncocence, but it was another to allow politics to be smeared by criminal stain.

What was the view of the central government on the issue?

Attorney General KK Venugopal, representing the centre, said that denying a person the right to contest polls on a party ticket would amount to denying them the right to vote, which includes the right to contest.

What is court’s view on criminal politicians?

The court said criminal politicians are nothing but a liability to this country. Their presence in power strikes at the roots of democracy. Criminalisation of politics and corruption, especially at the entry level of elections, has become a national and economic terror. It is a disease which is self-destructive and becoming immune to antibiotics.

What happens next?

It is up to the government now to legislate on the issue.

Is there a possibility of fake cases?

Yes, always. Attorney General KK Venugopal also informed the SC that a “mere allegation should not prevent a member from contesting. The court cannot remain oblivious of the fact that political aspirants are often framed in cases ahead of polls.”

Are there people with criminal records in Parliament?

Those convicted of criminal charges are barred from contesting elections or remaining in power.

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Lawmakers indifferent, criminals are king

By Bobby Naqvi, UAE Editor

India’s top court yesterday (Tuesday)  washed its hands of a contentious issue that has dogged the nation for decades — entry of criminals into parliament and state legislatures. 

In a disappointing verdict, a bench headed by the country’s chief justice threw the ball at the government, saying only parliament can enact a law that effectively prevents criminals from getting elected. India’s Representation of the People Act says anyone found guilty of a criminal offence is disqualified from fighting elections for six years. 

Still, around 1,700 or a third of elected lawmakers in parliament and state bodies have criminal records, including murder, assault, rape and intimidation. 
Why is that? The law has a hole: It disqualifies only those who are found guilty of a criminal offence in a court of law, but is silent on those who are indicted or chargesheeted for serious crimes by prosecuting agencies. So, a man or a woman who is facing court trial for murder can fight election by simply declaring charges against them on an affidavit. 

As a result of this lacuna in the legal provision, criminals routinely enter parliament by becoming lawmakers and even ministers, reaching positions of influence to control the police, investigators, prosecutors, witnesses and in some cases even judges. Which officer or prosecutor can then muster the courage to drag a minister or a ruling party lawmaker to court?

Moreover, Indian courts are notorious for delays and millions of cases remain pending as files gather dust in judiciary record rooms. That is why even those who are arrested and indicted for serious crimes remain eligible to fight elections. 

In that sense, the Supreme Court verdict declining to ban politicians with criminal cases is a huge blow to the very foundation of democracy. By expecting politicians to enact a law to punish their own is not very different from hoping a mobster will hear his own bail application on merit!

There are many reasons why musclemen and criminals are loved by all political parties in India. They have cash to spend, can mobilise people and resources and are capable of fighting elections with little or no dependence on parties. Unfortunately, elections are a messy affair in India, where money and muscle are critical for victory and political expansion.

Yesterday’s order by a bench headed by the outgoing chief justice will have another serious implication: The inability of the judiciary to ban criminals from fighting elections will deter people with clean record to join electoral politics as they simple can’t match the money and muscle power of criminals.