Recently, the Supreme Court in the two different judgements has raised concerns about the menace of criminalisation in politics.
• In one case, it found nine political parties guilty of contempt for not following in letter and spirit its February 13, 2020 direction.
• In another case, it has issued directions that no criminal case against MPs or MLAs can be withdrawn without an approval of the high court of the concerned state.

About the recent case (case 1)
The SC bench was hearing a pending PIL, seeking the establishment of fast-track courts for cases against legislators.
In November 2017, the Supreme Court had ordered the setting-up of Special Courts in each state to try the pending cases. Accordingly, 12 such courts were set up across the country.

About the withdrawal of cases against legislators
Various State governments have resorted to the withdrawal of numerous criminal cases pending against MP/MLA by utilising the power vested under Section 321 CrPC.
• Under Section 321, the public prosecutor or assistant public prosecutor may, with the consent of the court, withdraw from the prosecution of a case at any time before the judgment is pronounced.
For instance, In 2020, the Karnataka government decided to withdraw 61 cases, many of which were against elected representatives. Similarly, the Uttarakhand government had filed for withdrawing a murder case against a sitting MLA.

About the Supreme Court’s ruling:
• The court held that the power under Section 321 CrPC is a responsibility that is to be utilised in the public interest and cannot be used for extraneous and political considerations.
• To ensure expeditious disposal of pending cases, the SC directed the officers presiding over Special Courts or CBI Courts involving the prosecution of MPs or MLAs to continue in their present posts until further orders (No transfer is permitted). This direction will be subject to their superannuation or death.
• The court mentioned that CBI, ED and other central agencies delay filing status.
• The SC observed the following things.
o There are no details about the States or which is the oldest case.
o So, the SC directed the Centre to submit detailed reports on the cases registered by CBI, ED and other central agencies against MPs and MLAs. These cases range from corruption to money laundering.

About the transparency in elections (case 2):

In another case, the supreme court observed that criminalisation in the Indian political system is growing day by day. The Court also observed that “Persons involved in the criminalisation of the political system should not be permitted to be the lawmakers.”
To curb that, the February 2020 order of the SC required political parties to publish details of criminal cases against its candidates on their websites besides a local vernacular newspaper and a national newspaper and social media accounts. This has to be done within 48 hours of candidate selection or not less than two weeks before the first date for filing of nominations, whichever is earlier.

What is Criminalisation of Politics
• About:
o It means the participation of criminals in politics which includes that criminals can contest in the elections and get elected as members of the Parliament and the State legislature.
o It takes place primarily due to the nexus between politicians and criminals.

• Reasons:
o Lack of Political Will:
▪ In spite of taking appropriate measures to amend the Representation of the People Act, 1951 there has been
an unsaid understanding among the political parties which deters Parliament to make strong law curbing
criminalisation of politics.

o Lack of Enforcement:
▪ Several laws and court judgments have not helped much, due to the lack of enforcement of laws and judgments.
o Narrow Self-interests:
▪ Publishing of the entire criminal history of candidates fielded by political parties may not be very effective, as a major chunk of voters tend to vote through a narrow prism of community interests like caste or religion.
o Use of Muscle and Money Power:
▪ Candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
▪ Also, sometimes voters are left with no options, as all competing candidates have criminal records.

• Effects:
o Against the Principle of Free and Fair Election:
▪ It limits the choice of voters to elect a suitable candidate.
▪ It is against the ethos of free and fair election which is the
bedrock of a democracy.
o Affecting Good Governance:
▪ The major problem is that the law-breakers become lawmakers, this affects the efficacy of the democratic process in delivering good governance.
▪ These unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.
o Affecting Integrity of Public Servants:
▪ It also leads to increased circulation of black money during and after elections, which in turn increases corruption in society and affects the working of public servants.

o Causes Social Disharmony:
▪ It introduces a culture of violence in society and sets a bad precedent for the youth to follow and reduces people’s faith in democracy as a system of governance.
SC directives to curb criminalisation of politics
The SC modified this and said the following things to weed out criminalisation.
• The details “shall be published within 48 hours of the selection of the candidate”.
• Political parties to have a caption “candidates with criminal antecedents candidates” on their homepages.
• The SC asked ECI “to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents” so that voters can get all the information in one stroke and to carry awareness campaigns for voters.

Consequences of criminalisation of politics:
1. The presence of people with criminal backgrounds in politics and law-making of the country has negative impacts on the quality of democracy.
2. Enormous amounts of illegal money flow into the electoral process due to extensive links with the criminal underworld.
3. The criminalisation of politics also has the consequence of obstructing the process of justice and causing further delays in trials.
4. Criminals entering politics further increases corruption in public life and has an adverse negative impact on the state institutions including the bureaucracy, the executive, the legislature and the judiciary.
5. The criminalisation of politics introduces a culture of violence in society and sets a bad precedence for the youth to follow.

It was a move that significantly clips the powers of the state governments at a time when the top court has expressed grave concern over decriminalization of politics.
Section 321 of the Code of Criminal Procedure, 1973 Under this provision, the public prosecutor or assistant public prosecutormay, with the consent of the court, withdraw from the prosecution of a case at any time before the judgment is pronounced.
Several states have withdrawn cases against legislators, under this section.
Judicial steps to control criminalisation of politics
• In Union of India (UOI) v. Association for Democratic Reforms and Anr, 2002, the SC held that every candidate, contesting an election to the Parliament, State Legislatures or Municipal Corporation, has to declare their criminal records, financial records and educational qualifications along with their nomination paper.
• In Ramesh Dalal vs. Union of India, 2005, the SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.
• The SC in Public Interest Foundation vs Union Of India case, 2018 had also directed political parties to publish online the pending criminal cases of their candidates.
o In this case, the court left the matter of disqualification of politicians carrying criminal charges against them, to the Parliament saying that the court cannot add to the grounds of disqualification.
Suggestions to control the criminalisation of politics

Election Commission Recommendations:
• The Election Commission in its “Proposed Electoral Reforms” (2016) recommended that persons charged with cognizable offences should be debarred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is led at least 6 months prior to the election in question.
2nd ARC Recommendations: The Second Administrative Reforms Commission in its fourth report on Ethics in Governance (2008) made the following recommendations:
• Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, where charges have been framed six months before the election.
• It also supported the proposal of including the filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950.

Way Forward
• The nature of the government machinery needs to change to make it more transparent, accountable and pervade.
• Awareness among people (voters) about their rights and they should vote for the right person should be created.
• Given the reluctance by the political parties to curb criminalisation of politics and its growing detrimental effects on Indian democracy, Indian courts must now seriously consider banning people accused with serious criminal charges from contesting elections.