Criminalization of Politics means that the criminals entering the politics
and contesting elections and even getting elected to the Parliament and state
legislature. Criminalization of politics is the focus of public debate when
discussion on electoral reforms takes place. A February 2020 Supreme Court
judgement on Criminalization in politics may have far-reaching consequences for
The judgment was passed in a contempt of court case filed against the Chief
Election Commissioner of India. The petition claimed the ECI had failed to take
any steps to ensure the implementation of a 2018 judgment of the bench, which
had made it mandatory for political parties to declare and publish all criminal
cases pending against their candidates.
The rising percentage of members of parliament who have a criminal background:
2004 - 24%, 2009 - 30%, 2014 - 34% and 2019 -43%. Around 50% of MPs in the new
Lok Sabha have criminal records. This increasing number of members with criminal
records in parliament endangers the survival of any true democracy.
Meaning of criminalisation of politics:
The criminalisation of politics implies the increasing involvement of criminals
and individuals with criminal charges in Indian politics. In addition, this term
means people coming from criminal backgrounds and becoming politicians and
elected delegates. Furthermore, as per Section 8 of the Indian Representative of
People Act, any individual imprisoned for a term of more than 2 years cannot
file as a candidate in elections until 6 years of his release from jail.
However, due to the prevailing criminalisation of politics in India, this
provision is not effective in practical life.
Causes of Criminalization of Politics:
- Success rate of Politician:
Political parties give tickets to candidates on the basis of their ability
to win. The chances of winning for a candidate with declared criminal cases
in the Lok Sabha 2019 was 15.5 percent whereas for a candidate with a clean
background, it was just 4.7 percent.
- Use of Money and Muscle Power:
Success in elections is largely dependent on the amount of funding it
receives. Candidates with criminal records often have large hordes of cash
that ensures their victory in elections. As per ADR website, in 2019 out of
539 candidates analysed, 43% have declared criminal cases against them.
of the 542 MPs analyzed during Lok Sabha elections in 2014, 185 (34 percent)
winners had declared criminal cases against themselves while during Lok
Sabha elections in 2009, 30 percent had declared criminal cases against
themselves. Hence there is a clear 44% increase in candidates with declared
criminal cases against them.
- Corruption and Red Tapism:
corruption and red-tapism in the bureaucracy and government have led to the
development of a nexus between bureaucrats, politicians, police officers,
criminals, and the corporates. All these ultimately aid the people with a
criminal background to enter politics.
- Weak Rule of Law and Increasing Vote Bank Politics:
Weak rule of law has reduced the belief of people on the police and
bureaucracy.The social divisions on the basis of caste and religion etc.,
and the inability of authorities to act promptly in case of social tensions
have reduced the faith of people on democratic institutions.This creates a
breeding ground for the strongmen to gain popularity and hold on the people
of their own community.
- Lack of intra-party democracy:
In India, there is a lack of intra-party democracy, and the top leadership
takes the decision on the candidates contesting elections. Thus politicians
with criminal records are able to escape the scrutiny of the ground level
workers and organization of the party.
- Poor Conviction Rate:
In India, the level of conviction of MPs and MLAs with criminal records have
been very low. Low level of convictions and the delays in the trials does
not deter the political party to give tickets to candidates with a criminal
- Toothless Election Commission:
Election commission asks for the details of the property, cases pending in
the courts, and educational qualifications from the candidates filing the
nomination papers and also election expenditure of candidates.However, the
candidates often give wrong details and the Election commission is unable to
take any action against them.
Impacts of criminalization of politics:
- Negative Impacts on the Quality of Democracy:
Presence of legislatures with criminal background negatively impacts the
lawmaking power of Parliament and state legislatures. It is like a dent on
democracy and negatively impacts the quality of democracy.
- Obstructing the Process of Justice Delivery:
The criminalization of politics obstructs the process of justice and causes
delays in trials. Criminals after getting into the position of power misuse
it for or getting away with their crimes and offences.
- Increases Corruption:
The criminalization of politics increases corruption in public life, creates
a nexus of criminal, politician, and bureaucracy. All these have negative
impacts on the state institutions such as the legislature, executive and the
- Violence in Society:
It leads to a culture of violence in society. For example, the level of
political violence in West Bengal has created bad precedence for the youth
of the state.
- Illegal Money Flow into the Electoral Process:
The criminalization of politics promotes the flow of illegal money into the
electoral process and negatively impacts the security of the people and the
Role Of Judiciary In Controlling Criminalization Of Politics:
From time to time, the Honorable Supreme Court has taken steps to curb India's
increasing criminalization of politics. Various judgments, views, and decisions
have been put forward in this regard. But despite this, nothing significant has
happened. The Apex Court rightly pointed out in its statement and most of us
would indefinitely agree to the statement:
"No one can deny that the menace of criminalization in the Indian political
system is growing day by day. Also, no one can deny that for maintaining the
purity of the political system, persons with criminal antecedents and who are
involved in the criminalization of the political system should not be permitted
to be lawmakers."
In August 2021, the bench of Justices Rohinton Fali Nariman and B.R. Gavai from
the Hon'ble Supreme Court expressed their anguish over the criminalization of
politics. The Hon'ble Court observed the following:
"The political parties refuse to wake up from deep slumber. Cleansing the
polluted stream of politics is obviously not one of the immediate pressing
concerns of the legislative branch of government."
The Supreme Court ordered the political parties in its February 2020 contempt
petition to comply with its judgment of Public Interest Foundation and Ors.
vs. Union of India and Anr.
(2018). However, the orders of the decision were
not followed by the various political parties. The court observed that the
Bharatiya Janata Party (BJP), the Janata Dal (United), the Rashtriya Janata Dal
(RJD), and the Congress were guilty of contempt because they did not comply with
the orders of the Hon'ble Supreme Court.
It imposed a fine of 1 lakh for not disclosing the complete details of criminal
antecedents of candidates in the Bihar elections in 2020. Apart from this, the
Communist Party of India and the National Congress Party were asked to deposit
five lakhs each because they did not comply with the orders of the Hon'ble
Supreme Court at all.
The present August 2021 contempt petition was filed by Advocate Brajesh Singh,
who alleged that the various political parties did not obey the court's orders
during the Bihar assembly elections in 2020. After taking the contentions and
arguments put forward, the Bench noted that most political parties have either
not given full disclosure or have not followed the format it was to be
In its latest judgment, the following were the orders and amendments made by the
bench in its previous ruling in the year 2020:
ECI has been directed to create a mobile application that contains all the
information about the criminal antecedents of the candidates so that the general
public can have access to information conveniently.ECI has been directed to
create a separate monitoring cell for checking whether the parties are complying
with the court's order or not. It has also referred them to bring such instances
of the breach to the knowledge of the court.
The Hon'ble Supreme Court directed the political parties to set up a new tab on
their homepage of websites named 'candidates with criminal antecedents' to make
it easier for voters to know more information. The court has modified its
earlier order of February 2020, directing parties to publish details within 48
hours of selection and not two weeks before nomination. It also observed that a
unique bench at the Supreme Court might be formed to monitor the cases involving
accused MPs and MLAs.
Further, the issue was taken into cognizance mainly of two separate cases of
criminalization in Indian politics.
The Hon'ble Supreme Court observed that the state governments could not withdraw
the cases against legislators without the permission of respective state high
courts.Parties punished: Nine parties were held guilty of contempt for not
disclosing complete details in Bihar 2020 elections. Further, eight of them were
also fined with heavy penalties.
In 1997, high courts were directed by the Honorable Supreme Court not to suspend
the conviction if that person is found convicted under the Prevention of
Corruption Act, 1988.
In the case of Ramesh Dalal vs. Union of India
(2005), the Hon'ble
Supreme Court pronounced that a sitting member of Parliament and a member of the
state legislature can also be disqualified from contesting elections if he is
convicted for not less than two years for imprisonment by the court of law.
Furthermore, it was observed in K Prabhakaran vs. P Jayarajan
"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 backgrounds from entering
politics and the house - a powerful wing of governance. Persons with a criminal
background do pollute the process of election as they do not have many holds
barred and have no reservation from indulging in criminality to win success at
Public Interest Litigation (PIL) was filed in the Supreme Court in 2011, seeking
to issue guidelines and lay framework to be followed to curb the menace of
criminalization of politics and debar those charged with a crime from contesting
Section 8(4) of the Representation of the People Act, 1951 provided a respite to
a member of Parliament or a member of the legislative assembly/legislative
council. If the convicted member filed an appeal within three months, then that
application was accepted by the Hon'ble Supreme Court.
This implied that the
member could continue his membership of the concerned legislature until the
court disposed of the application. The court struck down this provision in the
case of Lily Thomas vs. Union of India (2013). At present, a member of
Parliament or member of state legislature stands disqualified if they are
convicted of an offence provided in Section 8(1) or 8(2) of the Representation
of People Act, 1951. Also, a person remains disqualified from holding a seat
after six years of release. Section 8(4) was held unconstitutional since
Parliament's work is to make disqualification laws and not secure the seats for
The Hon'ble Supreme Court held in People's Union for Civil Liberties vs. Union
(2018) that the voter has the fundamental right under Article 19(1)(a)
of the Indian Constitution to know about the candidates who are contesting the
In the year 2020, the Hon'ble Supreme Court reiterated its 2018 order. The main
aim is to discourage candidates with criminal backgrounds from contesting
elections. Political parties should explain why they have chosen a candidate
with a criminal background. The candidate selection must be based on merit, not
on winnability, the Supreme Court observed. The information must be published on
social media platforms, local and national newspapers, and the website.
information needs to be submitted to the election commission within 72 hours
after declaring the candidate's name. A compliance report must be filed with the
Election Commission or should be ready to face contempt action. It is an
undeniable fact that electoral and judicial reforms are the need of the hour.
Current Verdict of Supreme Court:
The Supreme Court (SC) has ordered political parties to publish the entire
criminal history of their candidates for Assembly and Lok Sabha elections along
with the reasons that forced them to field suspected criminals. The order was a
reply to the contempt petition about the general disregard shown by political
parties to a 2018 Constitution Bench judgment (Public Interest Foundation v.
Union of India
) to publish the criminal details of their candidates in their
respective websites and print as well as electronic media for public awareness.
The SC passed an order while exercising powers under Articles 129 and 142 of the
Constitution which deals with the contempt power of the Supreme Court and
enforcement of its decrees and orders.
Highlights of the Order:
- It is mandatory for political parties (at the Central and State election
level) to upload on their website detailed information regarding individuals
with pending criminal cases.
- It shall also include the nature of their offences, charges framed
against them, the court concerned, case number, etc.
- Additionally, the political parties need to offer an explanation as to
why candidates with pending criminal cases are selected as candidates in the
- Thus the candidate s mere winnability at the polls ' shall not be the sole
reason for handing over a ticket to the candidate to contest elections.
- The above information needs to be published in a local as well as a
national newspaper as well as the parties ' social media handles.
- The information mandatorily to be published either within 48 hours of the
selection of candidates or less than two weeks before the first date for filing
of nominations, whichever is earlier.
- The political parties need to submit compliance reports with the
Election Commission of India within 72 hours.
- If a political party fails to submit then the Election Commission shall
bring such non compliance by the political party concerned to the notice of
the Supreme Court as being in contempt of this Courts orders/directions.
Significance of the Order:
What is the way out?
- Over the last four general elections, there has been an alarming
increase in the incidence of criminals in politics. The increasing
criminalization of politics threatens the law making process and thus
lawmakers should be above any kind of serious criminal allegation.
- In 2004, 24 of the Members of Parliament (MPs) had criminal cases
pending against them. This number has increased to 43 % of MPs in 2019
- The direction of SC to legislate parliamentary legislation to curb
criminalization of politics may help to deliver constitutional governance.
There are three possible options.One, political parties should themselves refuse
tickets to the tainted. Two, the RP Act should be amended to debar persons
against whom cases of a heinous nature are pending from contesting elections.
Three, fast track courts should decide the cases of tainted legislators quickly.
Landmark Judgments Pertaining To Criminalization Of Politics:
The Supreme Court has taken a timely decision by agreeing to hear a plea from
the Election Commission of India (ECI) to direct political parties to not field
candidates with criminal antecedents. The immediate provocation is the finding
that 46% of Members of Parliament have criminal records.
While the number might be inflated as many politicians tend to be charged with
relatively minor offences - "unlawful assembly" and "defamation" - the real
worry is that the current cohort of Lok Sabha MPs has the highest (29%)
proportion of those with serious declared criminal cases compared to its recent
The Supreme Court has come up with a series of landmark judgments on addressing
this issue. It removed the statutory protection of convicted legislators from
immediate disqualification in 2013, and in 2014, directed the completion of
trials involving elected representatives within a year. In 2017, it asked the
Centre to frame a scheme to appoint special courts to exclusively try cases
against politicians, and for political parties to publicize pending criminal
cases faced by their candidates in 2018. But these have not been a deterrent to
legislators with dubious credentials.
Perhaps what would do the trick is a rule that disallows candidates against whom
charges have been framed in court for serious offences, but this is something
for Parliament to consider as an amendment to the Representation of the People
Act, 1951. This denouement, however, is still a pie in the sky given the
composition of the Lower House with a number of representatives facing serious
RPA Criminalization of politics:
Currently, under the Representation of Peoples (RP) Act, lawmakers cannot
contest elections only after their conviction in a criminal case. Section 8 of
the Representation of the People (RP) Act, 1951 disqualifies a person convicted
with a sentence of two years or more from contesting elections. But those under
trial continued to be eligible to contest elections. The Lily Thomas case
(2013), however, ended this unfair advantage.
Election Commission has limited powers to legislate on such laws. Public opinion
too is not firm on the issue. A survey found that opinion was divided when
people were asked whether they would vote for an honest candidate who may not
get their work done, or a tainted candidate who could get their work done. While
political parties raise concern about candidates with a tainted background
contesting elections, none of them come forward to set an example for others
when it is time to act.
In the present criminal justice system, it takes years, probably decades, to
complete the trial against a politician. Those with political influence have
taken full advantage by delaying hearings, obtaining repeated adjournments and
filing innumerable interlocutory petitions to stall any progress. They also
engage in corruption and infect the bureaucracy and the police.
Law panel report bats for using the time of the framing of charges to initiate
disqualification as an appropriate measure to curb the criminalization of
politics. Political parties should themselves refuse tickets to the tainted. The
RPA Act should be amended to debar persons against whom cases of a heinous
nature are pending from contesting elections. Bringing greater transparency in
campaign financing is going to make it less attractive for political parties to
The Election Commission of India (ECI) should have the power to audit the
financial accounts of political parties, or political parties' finances should
be brought under the right to information (RTI) law.
Broader governance will have to improve for voters to reduce the reliance on
criminal politicians. Fast-track courts are necessary because politicians are
able to delay the judicial process and serve for decades before prosecution. The
Election Commission must take adequate measures to break the nexus between the
criminals and the politicians.
The forms prescribed by the Election Commission for candidates disclosing their
convictions, cases pending in courts and so on in their nomination papers is a
step in the right direction if it applied properly. Addressing the entire value
chain of the electoral system will be the key to solving the puzzle of
minimizing criminal elements from getting elected to our legislatures.
This process would involve sensitizing the electorate about the role and
responsibility of the elected representatives. Political parties will have to be
encouraged to have stronger inner party democracy to attract this new set of
leaders to join the party. And finally, our judicial system will have to be
overhauled drastically to ensure that justice is dispensed swiftly in all cases.
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Written By: Shaikh Moeen Naeem
(Dept. Of Political Science) - Dr. A. G. D. Bendale Women's College, Jalgaon, M. S.