Court must stem rot

Jagdeep S Chhokar

Founder-member, Association for Democratic Reforms

THE TRIBUNE DEBATE: Criminalisation of politics

THE scourge of criminalisation of politics has existed for decades. It was red-flagged by the NN Vohra Committee report, which was submitted in October 1993. The report drew the following conclusions: “On the basis of the extensive experience gained by our various intelligence, investigative and enforcement agencies, it is apparent that crime syndicates and mafia organisations have established themselves in various parts of the country. The various crime syndicates/mafia organisations have developed significant muscle and money power and established linkages with governmental functionaries, political leaders and others to be able to operate with impunity (as recently exemplified by the activities of the Memon brothers and Dawood Ibrahim).”

The percentage of elected MPs with criminal cases is higher than that of candidates facing such charges.

The public exposure came two decades ago because of a series of judgments by the Delhi High Court and the Supreme Court that made it mandatory for candidates contesting elections to the Lok Sabha and Assemblies to disclose in a sworn affidavit their criminal, financial and educational antecedents. The petitions concerned were filed by the Association for Democratic Reforms (ADR). The organisation compiled the data from the affidavits submitted by candidates in the 2004 Lok Sabha elections and made it public. It has been doing it since then for every Assembly and parliamentary election.

It is in this context that the recently released information about the candidates in the fray in the first phase of the 2024 Lok Sabha elections needs to be seen. The information available so far shows that out of the 1,618 candidates whose affidavits were analysed, 252 (15.57 per cent) have declared that they have criminal cases pending against them.

These details need to be examined in two ways for comparisons. One is to compare this data with similar data from the earlier elections, and the second is to see what kind of MPs such candidates would make if elected.

The percentage of candidates with criminal cases in the 2004, 2009, 2014 and 2019 Lok Sabha elections has varied from 12 per cent to 19 per cent. In view of this, the fact that 15.57 per cent such candidates are contesting the first phase of the current Lok Sabha elections is not out of line. It is too close to 17 per cent (2014) and 19 per cent (2019) to indicate any significant reduction in the proportion of candidates with criminal cases against them. Moreover, this data is only for the first phase, and the overall percentage might go up.

The other comparison is the conversion of candidates with criminal cases into MPs with criminal cases. The percentage of elected MPs with criminal cases is higher than that of the candidates facing such charges. This shows that the number of tainted MPs is certainly more than 15.57 per cent. I make this assertion purely based on the data. It is certainly not my hope that the percentage of MPs with criminal cases is more than, or equal to, 43 per cent.

Let us now come to why this happens. Irresponsible behaviour on the part of various political parties is to blame for this. Parties choose to give their tickets to persons with a criminal background on the grounds that they are electable candidates. And since one party does this, others claim they have to do it too.

The matter has been in the Supreme Court. The court has been very positive in some cases, saying that if a party gives a ticket to a person with criminal cases, it has to declare reasons why it is doing so and how come it did not find a person without cases pending against them. Parties are also required to publish advertisements declaring the reasons. Parties have complied with these directions only perfunctorily, completely violating the spirit of the judgment.

Public-spirited persons have gone back to the top court with the plea that parties have not been following the directions properly. The court has even levied fines on some parties for not complying with the provisions of the law laid down by the court. This has, however, had no impact on the parties, which continue to give tickets to persons with criminal cases pending against them with impunity.

Pleas have been made to the apex court, praying that persons with criminal cases pending against them — in which the prescribed punishment is two years of imprisonment or more; cases have been filed at least six months prior to the date of the election; and charges have been framed by a court of law — should not be allowed to contest elections. However, the court has not been keen on doing that on the grounds that this would amount to the making of a law, which is not a function of the judiciary.

It has been brought to the notice of the court that when there is a gap or infirmity in the law and the legislature has not had the time or inclination to fill the gap or correct the infirmity, it is the duty of the judiciary to fill the gap till the legislature does it.

The court has done this, filling the gap in law several times and twice in cases filed by the ADR, once in 2002 and recently in the case of the appointment of the chief election commissioner and election commissioners.

The menace of criminalisation of politics will not go away till the apex court does the needful or we, the people, decide to make it happen through widespread public action.

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