Reign of Criminals

The Supreme Court (SC) of India has questioned the Central Government and the Election Commission (EC) on the rationale behind allowing convicted criminals to contest elections six years after serving their sentence despite remaining barred from government employment. The SC is to examine the constitutional validity of sections within the Representation of the People Act (RPA) 1951 and has requested responses from the Centre and Act the EC. Shouldn’t a convicted person be barred from contesting elections for life, asks the SC.

The SC’s question is based on a Public Interest Litigation (PIL) filed by an advocate, Vikas Singh, challenging provisions of the RPA barring convicted politicians from contesting polls for six years after serving jail terms, instead seeking lifetime ban on convicts from polls. While resuming hearing on the PIL, the SC observed that “criminalization of politics” is a very major issue.  According to the media, data on criminalisation of politics presented to the SC showed that of the 543 Lok Sabha Members of Parliament (MPs), as many as 251 face criminal cases, and of them 170 are charged with offences punishable with imprisonment for five or more years. 

The country is riddled with caste, creed, religion and reservations – all on account of vote-bank politics of political parties. Some incredibly rich continue to enjoy ‘reservations’ in perpetuity and so do their progeny; with relaxed norms for securing jobs, including low pass percentages. The net effect is more on the reserved category - lower the standards across the board.  Political parties allot tickets on the basis of castes, some are sold-bought depending on who paid how much. Winning/losing parliamentary elections don’t matter much as backdoor entry via nomination to Rajya Sabha is always open. 

Criminalization of politics in India includes political control of the police, state money, corruption, weak laws, lack of ethics, values, vote bank politics and loopholes in the function of the Election Commission, which is expected to function independently but is ‘mostly’ subservient to the ruling political party. One can stand for elections even from prison. Political parties field put up candidates with criminal charges because of their winnability factor – goon following and fear influence. Entry into politics assures riches for the next few generations. A Member of the Parliament can attend the Parliament just for one day (paid attendance allowance for it also) and secure pension for the rest of his/her life. If an MP has served as MP five times, he/she gets five pensions. 

In 2017, the SC ordered special courts to be set up across the country to fast-track the long-pending trials of lawmakers. Following this directive, 12 special courts were set up across 11 States exclusively to try sitting MPs and MLAs (Members of Legislative Assemblies). The 12 Special Courts comprised of two in National Capital Territory (NCT) of Delhi, and one each in the States of Uttar Pradesh, Bihar, West Bengal, Madhya Pradesh, Maharashtra, Karnataka, Andhra Pradesh, Telangana, Tamil Nadu and Kerala. The special court in each State has jurisdiction over the entire State, while the two in Delhi cover cases within the precincts of Delhi. Special Court of Bihar and Kerala were subsequently discontinued following directions of the SC on December 4, 2018. The excitement in the air was palpable, with the “sponsored” media saying politics would be cleaned up in India in a matter of one-two years.

But eight years later in 2025, amicus curiae, advocate Vijay Hansaria, during the hearing on the PIL by advocate Vijay Singh, submitted an 83-page report in the SC collated from the States, saying that despite several directions passed by SC, close to 4,442 criminal cases involving 2,556 sitting MPs and MLAs are pending. He said it was a "matter of shame' that 42 percent of Lok Sabha MPs have pending criminal cases, some of which are pending for over 30 years. What sort of confidence does this inspire?

Reasons for the delayed trials include: stays granted by various High Courts; insufficient Special Courts to exclusively try cases against MPs/MLAs; shortage of prosecutors and latches in prosecution, and; delayed investigations. The SC has now ordered that Criminal trials involving elected representatives be monitored by a Special Bench of each High Court and in cases where a trial has been stayed, the special bench will hear and decide on continuing or cancelling the stay, preferably within two months.

The Catch 22 is that a lawmaker is considered innocent till convicted of the criminal charge(s). But the flip side of the issue is that cases can keep pending for years – even beyond 30 years. How much difference would the SC’s dictum (Special Bench of High Courts monitoring trials of criminal lawmakers and continuing/ cancelling stays in short-time) make; considering that overall, India’s judiciary has 4,48,23,052 pending cases, of which 3,48,81,588 are criminal cases and 1,09,41,454 civil cases, according to the National Judicial Data Grid.  Also, many states in India don’t even have Special Courts, while Special Courts in Bihar and Kerala were discontinued in 2018 on orders of the SC. Interestingly, the Madras High Court questioned the constitutional validity of setting up Special Courts to exclusively try MPs and MLAs for various crimes; arguing that Special Courts can only be constituted by a statute and not by executive or judiciary, and they should be “offence-centric”, not “offender-centric.”

One view is that since politics dominates the bureaucracy, and reins in business, civil society and the media, the country needs governance that is free of the “criminal” virus. But the catch here is that many of our lawmakers, especially the illiterate or holding fake degrees, cannot function without the bureaucrats who hold them ransom. Another view is that ensuring prosecution with public pressure may help. If one political leader is hauled up for giving tickets to large numbers of tainted candidates, plus the election commission should be strengthened since the EC cannot deregister a political party. These appear to be a chimera considering the present state of affairs and empowering the EC to deregister a political party could lead to misuse of the EC.

As per the EC notification of March 23, 2024, India has six national parties, 58 state parties and 2,763 unrecognised parties. If at all, we are interested in political reforms, an ordinance should be passed restricting the national and state parties six to eight, as a first step, with the option for all to join any one of them, as a first step, unregistered parties should be banned for politicking. Moreover, switching from one political party to another should not be permitted individually or en-bloc for a specified period, say only after 10 years. The existing Anti-Defection Law is full of loopholes by design, which needs to be replaced.

With regard to the questions posed by the SC to the Government of India and the EC, these are because of the PIL filed by advocate Vijay Singh. However, it may be recalled that on a similar PIL filed in the SC not many years ago asking for criminals to be banned permanently from contesting elections, the SC had said that such a decision needs to be taken by the Executive - read the Parliament. What sort of decision can Parliament take with so many MP’s facing criminal charges? Incidentally in 2019, 93 percent MPs in the Indian Parliament were millionaires and 46 percent faced criminal charges. So, will the reign of criminals continue in India – your guess is as good as mine but it is no surprise that India ranked 96 out of 180 countries in the Corruption Perception Index 2024.

The author is an Indian Army veteran, Views expressed are personal.