In a far-reaching verdict aimed at decriminalising Indian politics, the Supreme Court directed political parties on Thursday to upload on their websites and social media platforms the details of pending criminal cases against their candidates. Most importantly, the court also asked the parties to publish reasons as to why they are selected, as also for not giving ticket to those without criminal antecedents. It said these details should be published within 48 hours of the selection of the candidate or at least two weeks before the first date for filing of nominations, whichever is earlier.
"The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate," said the bench of Justices R.F. Nariman and S. Ravindra Bhat. The details should also be published on official social media platforms of the political parties, including Facebook and Twitter, and also in one local vernacular and one national newspaper, the apex court directed.
The reasons for selecting candidates having pending criminal cases should be with reference to their qualifications, achievements and merit and not merely on "winnability" at the polls, it said. Why these candidates with criminal cases are chosen should also be clarified by the political parties. "It appears that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics," the bench said referring to the data placed before it.
"We have also noted that the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place," it said. If a political party fails to submit the compliance report of the directives with the Election Commission, the poll panel "shall bring such non-compliance" to the notice of the Supreme Court "as being in contempt of this Court's orders/ directions", the bench said.
What is the magnitude of the problem?
The top court noted that 24 per cent of the MPs had criminal cases pending against them in 2004, while in 2009, it went to 30 per cent. Further, in 2014, 34 per cent of MPs had pending criminal cases against them, which increased to 43 per cent in 2019.
Take the case of the recent Delhi polls: The Association of Democratic Reforms (ADR) reported that more than half the candidates had criminal cases against them. "There has been a sharp jump in the number of MLAs with registered criminal cases. In 2020, 43 MLAs declared criminal cases against them while in 2015, 24 MLAs had criminal cases. The number of MLAs with serious criminal cases, which included rape, attempt to murder and crimes against women, is 37," reported news agency IANS.
The numbers do not lie. Take a specific case. When it comes to crimes against women, the number of candidates facing such charges have skyrocketed over the years. As many as 76 lawmakers across the country have declared cases related to crimes against women. In the last five years, a total of 572 candidates with such cases registered against them have contested Lok Sabha, Rajya Sabha and Assembly elections. This was analysed in a study conducted by the Association for Democratic Reforms. There are nine lawmakers who have declared cases related to rape. Three of these lawmakers are MPs and six are MLAs.
The study showed that from 2009 to 2019, there has been an increase of 231 per cent in the number of candidates with declared cases of crime against women contesting in Lok Sabha elections. For the same period, there has been an increase of 850 per cent in the number of MPs with declared cases of crime against women in the Lok Sabha.
Among the major parties in the last five years, 66 candidates with declared cases related to crimes against women were given tickets by the BJP. The second-highest number of candidates, 46, were given tickets by the Congress, followed by 40 candidates from the BSP.
The BJP, under Modi, has not been able to clean up the system despite the lofty promises, according to experts. Milan Vaishnav, a senior fellow at the Carnegie Endowment for International Peace in Washington, who analysed the criminal trends in Indian politics in his book When Crime Pays: Money and Muscle in Indian Politics, told Reuters: "Despite Modi’s heated anti-corruption rhetoric in advance of the 2014 general election, 35 per cent of his Bharatiya Janata Party’s (BJP) 282 Members of Parliament face ongoing criminal cases, and 22 percent have serious cases pending before the courts. Eight BJP MPs with serious cases eventually found their way into Modi’s first cabinet. The BJP is by no means alone when it comes to embracing candidates implicated in serious criminal cases, but it is also far from a paragon of virtue."
The effects of such disclosure
Disclosure might not serve much of a purpose as most constituents are well aware of the criminal antecedents of the candidate, according to experts. "Voters are voting for criminal candidates ... despite their criminal involvement. Voters are aware of the background of the people they are voting for. They are not ignorant. But they are making a calculation that these are the people who can best represent our interest," Vaishnav told PTI.
In his book, he observed that a criminal reputation actually helps at the hustings. Studying election results between 2004 and 2013, the author calculated that if the probability of winning an election is seven per cent for a candidate with an unblemished reputation, it increases to 19 per cent with at least one case against the candidate and if the case is a serious one, the probability of a win increases to 25 per cent.
The ways forward, Vaishnav told the news agency, was to, "Grant the Election Commission new powers to punish candidates who file false or misleading financial disclosures. Require disclosure of all political contributions and insist on independently-audited party accounts. Link political party registration and tax benefits to basic democratic and transparency standards and create a new legal mechanism to adjudicate cases where MLAs, MPs stand accused of serious crimes."
The legal milestones
The apex court delivered the verdict on a contempt plea which had raised issues regarding criminalisation of politics in India and claimed that directions given by the top court in its September 2018 verdict relating to disclosure of criminal antecedents by candidates are not being followed.
In September 2018, a five-judge Constitution bench had unanimously held that all candidates will have to declare their criminal antecedents to the Election Commission before contesting polls and called for a wider publicity, through print and electronic media about antecedents of candidates. Referring to the 2018 verdict, the bench said, "In this judgment, this court was cognisant of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry."
The bench, which passed the directions on Thursday in exercise of its powers under Articles 129 and 142 of the Constitution, said the apex court had passed directives in the 2018 verdict "in order to remedy this information gap".
"It shall be mandatory for political parties [at the central and state election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates," it said.
In its September 2018 verdict, the top court had left it to Parliament to "cure the malignancy" of criminalisation of politics by making a law to ensure that persons facing serious criminal cases do not enter the political arena as the "polluted stream of politics" needs to be cleansed.
During the hearing on the contempt plea, the ECI had told the court that increase in number of MPs having pending criminal cases was "disturbing". The poll panel had agreed with the suggestions of senior lawyer Gopal Sankaranarayanan, representing BJP leader and petitioner Ashiwini Upadhyay, including that all political parties should mandatorily upload on their website details of candidates with criminal antecedents along with the reasons as to why those without any criminal record could not be selected.
However, the EC had said it was not agreeable to the suggestion regarding penalising the political party or its candidates under Article 324 of the Constitution for their failure to disclose criminal antecedents, as it does not have this power.
After the Supreme Court order, the Congress alleged that the directions were already torn to shreds by Prime Minister Narendra Modi as Anand Singh, an accused in mining cases, was appointed a minister in Karnataka, while the BJP hailed the verdict, saying it would strengthen electoral democracy. The Congress welcomed the apex court direction asking all parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.
The top court said political parties will also have to upload reasons for selecting candidates who have criminal cases pending against them. "Today itself, Modiji has torn to shreds the SC orders on citing reasons for giving tickets to leaders accused in cases," Congress chief spokesperson Randeep Singh Surjewala tweeted, tagging a news report about Anand Singh, an accused in mining and forest crime cases, being appointed as the new minister for forest, environment and ecology in Karnataka.
"Modi ji and the BJP again come to the rescue of 'Bellary Gang'! SC says give reasons for giving tickets to tainted Netas or contempt! Modiji says make tainted Netas not MLAs alone but Ministers of the ministry, which has been allegedly looted! Will SC issue contempt of PM and Karnataka CM," Surjewala asked.
The BJP on its part said the SC direction would strengthen electoral democracy in the country and enable voters make a choice keeping "all factors" in mind when they cast their vote. BJP spokesperson Nalin Kohli said the orders of the top court have to be complied with. "It strengthens the electoral democratic process in enabling the voters to make a choice keeping all factors in mind," he said.
-Inputs from PTI