Criminalisation of Politics and Delays in Trials Against Legislators

Syllabus: GS2/ Governance

Context

• A recent report submitted to the Supreme Court shows that the special courts created for expediting criminal cases against MPs and MLAs have not significantly reduced pendency.

Background

• In Ashwini Kumar Upadhyay vs Union of India (2017), the Supreme Court directed the establishment of 12 special courts in 10 States and Union Territories for the expeditious disposal of criminal cases involving sitting and former MPs and MLAs.
• The Court directed these courts to prioritise cases involving offences punishable with life imprisonment, followed by offences carrying imprisonment of five years or more.
• High courts were also directed to constitute monitoring mechanisms, while trial courts were instructed to avoid adjournments except for rare and compelling reasons.

Criminalisation of Politics

• Criminalisation of politics refers to the growing participation of individuals with criminal backgrounds in electoral politics. A serious criminal charge includes offences where the maximum punishment is five years or more, or those that are non-bailable.
• In the Lok Sabha, 251 of 543 MPs had declared pending criminal cases, including 170 cases classified as serious criminal cases punishable by imprisonment of five years or more.
• In the Rajya Sabha, 75 of 233 MPs had declared pending criminal cases, including 40 serious cases.
• Among 4,111 State MLAs, 2,098 had declared pending criminal cases, including 1,286 serious criminal cases.

Reasons for the Criminalisation of politics

• Weak Disqualification Laws: The Representation of the People Act, 1951 (RPA) disqualifies candidates only after conviction.
  • Since trials take years, tainted candidates contest multiple elections before any judgement.
• Money and Muscle Power: Criminals with financial resources and local influence are seen as “winnable” candidates.
• Low Voter Awareness: Affidavits disclose candidate details, but many voters remain unaware or vote on caste/religious lines.
• Party Complicity: Parties often justify fielding tainted candidates by citing “popularity” and “electoral chances.”
• The Vohra Committee Report (1993) which studied the linkages between organised crime, political actors and elements inside the government and administrative machinery, brought forth their consequences for the rule of law.

Impact of Criminalisation of Politics

• Erosion of Democratic Values: It weakens the spirit of representative democracy since it undermines the premise of free and fair elections and leaves the voters with limited choices.
• Corruption: The level of election malpractices, including voter intimidation, booth capture and usage of black money in campaigns increases due to the presence of criminal groups.
• Erosion of Public Confidence: The recurring election of corrupt legislators led to a decline in voter participation and a loss of people’s confidence in democratic institutions.

Key Committee Recommendations

• The Law Commission’s 244th Report (2014) recommended disqualifying politicians from contesting elections as soon as charges are framed against them for offenses that carry a maximum punishment of five years or more.
  • The report specifically recommended expediting trials for sitting MPs and MLAs by establishing fast-track courts.
• The National Commission to Review the Working of the Constitution in its 2002 report recommended measures to enhance the accountability of political parties, including the statutory audit of party expenses and the disclosure of candidates’ assets and liabilities. 
• Indrajit Gupta Committee (1998) & 2nd ARC (2007) recommended partial state funding of elections to curb the use of black money and reduce corruption.

Supreme Court Interventions

• In Lily Thomas v. Union of India (2013), the Court ruled that any sitting MP, MLA, or MLC would be immediately disqualified upon conviction for a crime with a sentence of two years or more.
• In Public Interest Foundation v. Union of India (2018), the Court directed political parties to publicize the criminal records of candidates, detailing the nature of offences and charges.
• In 2020, the Supreme Court of India ordered political parties to publish details of candidates with pending criminal cases on their websites, social media, and in newspapers, along with the reasons for their selection, within 48 hours of candidate selection.

Way Ahead

• Establish independent prosecution wings with institutional safeguards against political interference.
• Introduce time-bound disposal of stay and quashing petitions before higher courts.
• Strengthen implementation of the Witness Protection Scheme, 2018.
• Use digital case-monitoring systems to track investigation, charge-sheet filing, summons, witnesses, adjournments and stays.
• Any electoral disqualification reform should balance the objective of preventing the criminalisation of politics with due process and the presumption of innocence.

Source: TH