Context

According to the Association for Democratic Reforms (ADR), 233 MPs in the current Lok Sabha are facing criminal charges, up from 187 in 2014, 162 in 2009, and 128 in 2004. Recently, the Supreme Court has imposed fines on political parties for failing to comply with its orders regarding complete disclosure of their candidates’ criminal history.

Order adds strength to Election Commission

• Through the order in a recent case, the SC has put a new onus on the Election Commission to do something concrete, for example, create a phone app to display the detailed criminal history of any contesting candidate.
• This should be accompanied with a separate cell in the ECI to monitor the compliance of all the political parties regarding this; any breach should be brought to the attention of the SC without delay.

Why legislature and political parties are reluctant?

• Two excuses: The legislature has been very slow in addressing this issue, and political parties remain extremely reluctant to change their ways, citing two major excuses.
• Winnability of candidate: “Winnability” of candidates is the first reason.
• The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
• The winnability clause is an attempt by the party to absolve itself of all blame and put the onus of sending a criminally charged candidate to Parliament solely on the voter.
• Innocent until proven guilty maxim: The other reason offered by political parties is summarised by the maxim of Indian law, which is that any accused is innocent until proven guilty.
• It is argued that most criminally accused candidates are the victims of “vendetta politics”.

Issues with allowing criminals to contest election

• The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
• Violation of right to equality under Article 14: There were 4.78 lakh prisoners (as of December 2019) of whom 3.30 lakh were under trial, i.e. not yet proven guilty.
• Yet, their fundamental rights — their right to liberty, freedom of movement, freedom of occupation and right to dignity — are curbed completely.
• An “innocent” undertrial cannot vote, but a man chargesheeted for murder can even contest election from jail.
• These blatant double standards are a clear violation of Article 14, which guarantees to all citizens equality before the law.

Suggestions

• ECI suggestion on vendetta politics: The ECI has suggested some safeguards against vendetta politics.
• First, only offences that carry an imprisonment of at least 5 years are to be considered.
• The case against the candidate should have been filed at least six months before the scheduled elections for it to be considered.
• And finally, a competent court must have framed the charges.
• Fast-track court: An alternative solution would be to try cases against political candidates in fast-track courts.
• The Supreme Court had sent a directive in 2014, directing that cases against political candidates must be completed within a year, failing which the matter should be reported to the Chief Justices of the respective High Court.
• This is a matter entirely in the judicial domain.
• Barring political parties: The Supreme Court has, in the recent order stopped short of drastic steps by rejected the suggestion to direct the Election Commission to bar political parties that fail to comply with criminalisation protocols by using its authority derived from Clause 16A of the Election Symbols Order.
• This step, the SC reasons, would be going too far and infiltrating the domain of the legislature.

Conclusion

The legislature and the judiciary need to do more to curb the menace of criminalisation of politics.

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