Development and Current Status of “Criminalization of Politics” in India
Soma Kumari
MPP/414/2021
INTRODUCTION:
The Indian democracy works on the principle of political equality, and it essentially means all the
citizens are equal before the law. The state alone cannot hold accountable for the survival of
democracy, and hence the role of citizens comes into the picture for the healthy functioning of
democracy. The greatest threat to Indian democracy at the moment is the Criminalization of
politics
In the fifties, there were sporadic complaints on the criminal’s role; in the sixties, the criminals
become the second fiddle to the politicians to make them win the Election and get protection from
the system in return.
A Bihar minister’s statement in an assembly where he found patronizing and would continue to
patronize gangsters to fight and win the Election is a pointer to the growing phenomena were to
win the Election; the criminal background has become an invisible requisite (NCRWC,2001:6.11)
An Observation shared by the Election Commission stated that nearly 40 members of the 11th Lok
Sabha and 700 members of the state assemblies had a criminal background. In 1990, at least 50
persons elected to the Bihar assembly had criminal charges (Lok Satta, Apr.8, 1990). In 1993 for
the state assembly election in Himachal Pradesh, Rajasthan, Madhya Pradesh, and Uttar Pradesh
reported that 836 candidates with criminal backgrounds participated (The Economist Nov.13-
19,1993).
A report shared by Association for Democratic Reforms (ADR) presents that in 2004, 124 (24%)
of the Members of Parliament had criminal cases pending against them; in 2009, that went up to
162 (30%); in 2014 to 34% and 2019 43% of MPs had criminal cases pending against them which
includes the severe charges as well.
These figures point towards the direction and represent the surface only; the ground reality is more
threatening.
LEGAL THREADS:
In 1984 The Election Commission identified the practice of booth capturing as the main problem
of Election and made recommendations on which the candidates can be disqualified from
contesting Election. Union Home secretary NN Vohra led a committee report in 1993 reveal the
linkage of government functionaries, political leaders, and syndicate mafia organizations after the
Bombay blast case on March 13, 1993, killed 300 people.
From 1987 onward, the election commission made several recommendations and suggested to the
Government that a new legal initiative such as amendment in section 8 1of the RPA 1951 could
empower the election commission to deal with the crime-tainted politicians.
Union of India vs. Association for Democratic Reforms (2002)
The Association for Democratic reform filed a writ petition before the Delhi High court to direct
the Government to implement the recommendations of the law commission. The SC upheld the
voters ‘right to be informed’ [Article 19(1)(a)] and directed the Election commission to secure
affidavits by candidates recording their educational qualification, personal background, assets, and
criminal antecedent. (Section 8 of the RPA,1951)
Peoples Union for Civil Liberties (PUCL) vs. Union of India (2004)
The PUCL challenged the validity of section 33B2 of the Representation of People Act, 1951 and
stated that political candidates were not bound to disclose any information apart from required
under the act. In this judgment, the Court reveals that the availability of basic information about
the electoral candidate influences the voter to make an informed decision; hence the expression of
opinion through the final act of casting a vote is a part of fundamental right [Article 19 (1) (a)].
The Court concluded that Section 33B of the RPA,1951 was unconstitutional and violative to
Article 19(1) (a). It mandates the contesting candidates to disclose their background details in the
public domain.
1 The Section 8 of the Representation of the People Act, 1951, provides for disqualification of candidates from contesting an
election on conviction by a Court of Law.
2Section 33B provided that, notwithstanding a judgment or order of the court or Election Commission, an electoral candidate is
not bound to disclose any information apart from that required under the Act.
Lily Thomas vs. Union of India (2013)
Advocate Lily Thomas filed a petition before the SC, which pertains to whether MLAs or MPs
should be disqualified after they are convicted in a criminal case, and section8 (4) of the RPA
protects a convicted lawmaker against disqualification.
The Court held the Section 8(4) of the RPA, which allows MPs and MLAs to continue in office
who are convicted while serving, is unconstitutional. The Court used Article 102(1) (e) and 191(1)
(e) and stated: Constitution allows Parliament to make laws for disqualification and not protection
and prevention of the membership of the house
Public Interest Foundation vs. Union of India (2018)
In 2011 a public interest litigation (PIL) was filed before the Supreme Court. The PIL requested a
framework developed by the Court to deal with the Criminalization of politics and restriction on
contesting elections. In other words, whether the Court can lay down any disqualification of
members of Parliament beyond Article 102 (a) to (d) and Article 102 (e).
Currently, Section 8 of the RPA only disqualifies a person when they are convicted of criminal
charges. A Five Judges Bench unanimously decided that they cannot disqualify candidates from
contesting elections against whom criminal charges have been framed. It also recognized that the
Court can’t introduce new rules and asked Parliament to make a law that prevents candidates
accused of serious crimes from entering politics.
Brajesh Singh vs Sunil Arora & Ors. (2021)
A petition was filed against the ECI and political party alleging that they have failed the SC order
dated 13.02.2020 during Bihar Election. The Judgement deals with the non-compliance of the
Supreme Court’s guidelines on disclosing criminal antecedents of contesting candidates.
The SC – in August 2021 – modified the order to make candidate details public “within 48 hours
of their selection” and not before two weeks before filing nomination. Moreover, it ruled that the
State Governments cannot withdraw criminal cases against legislatures without seeking
permission from the Court.
BIBLIOGRAPHY
Statues:
❖ The Indian Constitution 1950
❖ The Representation of People Act, 1951
Cases:
❖ Union of India v. Association for Democratic Reforms 2002 AIR 2112
❖ Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294;
❖ [Public Interest Foundation v. Union of India, (2019) 3 SCC 224, decided on 25-09-2018]
❖ Lily Thomas v. Union of India, (2013) 7 SCC 653
❖ Public Interest Foundation. v. Union of India W.P. (Civil) No. 536 of 2011
Links:
❖ https://www.scobserver.in/court-in-review/criminalisation-of-politics/?slug=pucl-v-uoi
❖ https://adrindia.org/legal-advocacy/judgements-and-orders
❖ https://www.thehindu.com/opinion/lead/owning-up-to-criminalisation-in-
politics/article32035186.ece
❖ https://lexlife.in/2021/06/30/criminalization-of-politics/
❖ https://www.legalserviceindia.com/article/l290-Criminalization-of-Politics.html
