Will Supreme Court's move to stop criminalisation of politics work?

Alarmed by the increasing criminalisation in politics, the Supreme Court recently ordered political parties to disclose criminal antecedents of their candidates both at the Central and state level.

Though the order of the Supreme Court is certainly laudable, the question remains whether the effort will be enough. It is also interesting to note whether such disclosure would bring about a change in the behaviour of political parties and in voting pattern.

The apex court’s judgement also notes some interesting points on the “winnability” of the candidates. The Supreme Court has created a set of substantive laws along with laying down the procedure for compliance of the judgement.

Exercising its powers of complete justice under Article 142 of the Constitution, the Supreme Court made it mandatory for the political parties to upload on their websites detailed information regarding individuals (with pending criminal cases) who have been selected as candidates.

These include the nature of the offences and relevant particulars such as whether charges have been framed, the court concerned, the case number etc). Further, this information must be published in one local vernacular newspaper and one national newspaper, and on the official social media platforms of the political party, including Facebook and Twitter.

Besides this, the court has set another deadline for the same, of 48 hours within the selection of the candidate or two weeks, before the first date for filing of nominations, whichever is earlier.

The compliance shall then be submitted by the political parties within 72 hours to the Election Commission failing which the political parties shall be liable for contempt of the Supreme Court.

The obvious miss in the judgement of the court is any direction for the independent candidates and also with regard to what shall be the liability of the party—civil or criminal. Also, in the case of a criminal action, who shall be held liable.

Over the years, the judiciary has been proactive in expanding fundamental rights of information to curb criminalisation in politics. Disclosure of criminal antecedents is one such effort by the judiciary.

It is pertinent to note that despite these efforts, criminalisation has increased at an alarming rate. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019, as many as 43% of MPs had criminal cases pending against them.

The order of the court proceeds on the premise that if the information is in the public domain, voters will refrain from voting for those candidates.

This goes against real-world experience—in Delhi’s Assembly election this year, almost above 50% of candidates of the Aam Aadmi Party (AAP) had serious criminal cases pending against them.

Nevertheless, AAP won with a thumping majority—62 out of 70 seats. Further, the candidates try to defend the charges by alleging political conspiracy. In the past, to weed out candidates with criminal antecedents, the Supreme Court had ordered setting up of special courts for legislators.

Coupled with mandatory disclosure and the looming threat of contempt, the order seems to add teeth to the effort. However, the effort will not bear fruit unless the will comes from within.

It is noteworthy that the Supreme Court judgement makes it mandatory to disclose reasons for selecting a candidate and not selecting other candidates who did not have criminal antecedents.

This order, however, cannot bring about a material change. If the parties were to field criminal candidates, they would do it by cursorily offering the reason that other candidates were not good enough or they chose a particular candidate because of his groundwork. Multiple reasons could be offered. Mere reason-giving cannot be the panacea to all problems.

Weeding out criminalisation requires a shift in the attitude of both the public and the political parties.

At the level of public, candidates with criminal antecedents should not be voted for and at the organisation level, the party should not give tickets to candidates with criminal convictions or having cases against them.

Selecting or rejecting a candidate with allegations is quite tricky. A balanced approach is required when selecting such candidates. If candidates are disqualified merely on allegations, it would open a Pandora’s box where frivolous charges would start cropping up before the elections and prevent the participation of deserving candidates.

Then, disqualification would require subjective satisfaction of the party which then goes back to the same point—the attitude of the political party—because the decision to select or reject can be justified on different grounds.

Subjective realm

Limitation of judicial orders is obvious from the fact that these orders are in pursuance of enforcement of fundamental rights. They can be stretched to the extent of maximum knowledge and not to a choice of candidates which remains in the subjective realm of the political party.

Any attempt by the judiciary beyond that would upset the balance of constitutional separation of powers between different wings of the government—judiciary vis-à-vis legislature and executive.

The order of the Supreme Court should be taken in the right spirit and the government must consider steps for reducing criminalisation in politics.

It is in the interest of purity of elections which forms the bedrock of our participatory democracy. A change must also come from the general public where they should boycott candidates with serious criminal antecedents. To this extent, awareness in public about the potential benefits which could accrue from choosing candidates without criminal antecedents vis-à-vis harm which they incur when they choose candidates with criminal antecedents would go a long way in ensuring the sanctity of our elections.

Therefore, it is imperative that the change must be imbibed from within – both by the political parties and the public.

(The writer is a student at Keshav Mahavidyalaya, Delhi University)