• In an order to check criminalisation of politics, the Supreme Court held nine political parties including the ruling BJP and JD(U) in Bihar guilty of contempt and fined eight of them for violating its February 2020 order on publication of criminal antecedents of their candidates for the assembly polls.

• The Election Commission had earlier said that 469 candidates with criminal antecedents were fielded by 10 political parties in the  Bihar Assembly polls held in October-November last year.

• The top court also modified its earlier order to make it clear that political parties must publish the criminal antecedents of their candidates, if any, within 48 hours of their selection. 

• Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states ‘candidates with criminal antecedents’.

• The bench imposed a fine of Rs 5 lakh each on CPM and the Nationalist Congress Party (NCP), saying they have not at all complied with the directions issued by this court.

• It imposed a fine of Rs 1 lakh each on the Janata Dal-United (JDU), Rashtriya Janata Dal (RJD), Lok Janshakti Party (LJP), INC, BJP and CPI and asked them to deposit the money within eight weeks with the poll panel.

• The Rashtriya Lok Samta Party (RLSP) was spared of the fine.

• The apex court directed the Election Commission to create a dedicated mobile application containing information published by the candidates regarding their criminal antecedents so that voter gets information on his or her mobile phone at one stroke.

Some observations by the SC bench:

• The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government. 

• No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the lawmakers. The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions.

• This Court, time and again, has appealed to the lawmakers of the country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber.

• The selection of candidates having criminal antecedents on the ground of mere winnability is a violation of the apex court’s direction given in 2020.

The Representation of the People Act, 1951

The Representation of the People Act, 1951 is a model Act which provides the legislative framework for:

• The conduct of elections to the Parliament and state Assemblies.

• The qualifications and disqualifications for membership.

• The code of conduct against illegal practices.

• The Election Commission (EC), a constitutional body, is assigned to take the mammoth exercise of conducting general elections under the act. The code of conduct is developed by the EC for carrying the elections in a fair manner.

The Representation of the People Act, 1951 lays down certain rules for disqualification of MPs and MLAs if they are convicted:

• Those convicted for crimes listed under clauses 1 and 2 of Section 8 of the Act will be disqualified for a minimum period of six years, even if the punishment is just a fine. These crimes include rape, practicing untouchability, sati, Foreign Exchange Regulation Act violations, causing enmity over religion, language or region, electoral violations, taking drugs, importing banned goods, etc.

• Section 8(3) says that if an MP or MLA is convicted for any other crime and is sent to jail for at least 2 years, he or she will be disqualified for six years from the time released.

• Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within three months of the date of judgment by the trial court.

• In Lily Thomas vs Union of India, 2013 the Supreme Court declared Section 8(4) of the RPA, 1951, (RPA) as unconstitutional. This section allowed legislators a three-month window to appeal against their conviction, effectively delaying their disqualification until such appeals were exhausted.

Section 8 of RPA, 1951 deals with disqualification on conviction for certain offences:

• A person convicted of any offence and sentenced to imprisonment for varying terms under clauses 1, 2, and 3 of Section 8 shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8(4) of RPA gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.

• The bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.

Main points of the judgment:

• The Constitution enlists the disqualification criteria in Article 102(1). This includes criteria like office of profit, unsound mind, undischarged insolvency and citizenship. This article also empowers the Parliament to make law specifying any other criterion for disqualification. In accordance with the constitutional mandate, the Parliament enacted the RPA 1951, mentioning the disqualification criteria in Section 8.

• The Supreme Court has given two reasons for its verdict. It held Section 8(4) to be in violation of Article 102 and Article 191 of the Indian Constitution. Second, the Supreme Court held that the Parliament had no legislative competence to enact Section 8(4).

• However, the reasoning of the Supreme Court is difficult to accept, since article 102 clearly empowers the Parliament to define the criterion for disqualification by enacting a law. Furthermore, none of the five clauses of Article 102(1) are attracted to invalidate Section 8(4).

• Also, Entry 72 to List 1 of the Seventh Schedule in the Constitution specifically allows Parliament to legislate on elections to Parliament or the state legislatures. It is well-settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power to legislate under Entry 97 to List 1 of the Seventh Schedule.

Voters’ right to know

In Public Interest Foundation vs Union of India, 2020 the Supreme Court directed political parties to publish criminal antecedents of contesting candidates along with reasons for fielding each one of these candidates, notwithstanding their ‘winnability’.

Data on tainted netas 

The Association for Democratic Reforms’ its report for Lok Sabha 2019 elections recorded the trend in winners with declared criminal cases three  consecutive Lok Sabha elections. 

The report made the following observations:

Lok Sabha 2019: 233 (49 per cent) of the 539 winners for Lok Sabha 2019, have declared criminal cases against themselves. Out of these, 159 (29 per cent) winners have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women, etc. The chances of winning for a candidate with criminal cases in the Lok Sabha 2019 elections were 15.5 per cent whereas for a candidate with a clean record it is 4.7 per cent.

Lok Sabha 2014: Out of the 542 winners analysed during Lok Sabha 2014 elections, 185 (34 per cent) winners have declared criminal cases against themselves. 112 (21 per cent) winners have declared serious criminal cases including cases related to murder, attempt to murder, communal disharmony, kidnapping, crimes against women, etc. The chances of winning for a candidate with criminal cases in the Lok Sabha 2014 elections were 13 per cent whereas for a candidate with a clean record it is 5 per cent.

Lok Sabha 2009: 158 (30 per cent) of 521 winners analysed during Lok Sabha 2009 elections, had declared criminal cases against themselves. 77 (15 per cent) winners had declared serious criminal cases against themselves.

Other committees like Goswami Committee on Electoral Reforms (1990) and Vohra Committee Report (1993) had raised serious concerns regarding criminalisation of politics in India. In the 18th Report by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on Electoral Reforms, presented to the Rajya Sabha on 15 March 2007, acknowledged the existence of criminal elements in the Indian polity which hit the roots.

In 1999, the 170th Law Commission Report on Electoral Reforms was the first to suggest that a new Section 4A be added to the Representation of the People Act, 1951 mandating that a person shall be ineligible to contest elections unless they file an affidavit declaring their assets along with a declaration whether charges had been framed against them by a criminal court.

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