In 2020, the Bihar state elections came to an end with the National Democratic Alliance (NDA) of BJP, JDU, HAM, and VIP as the parties coming to power for a term of five years. Out of 241 winning candidates analyzed by the Association of the Democratic Reforms (ADR), 68% of the total members have criminal antecedents. This number has increased 10% from 2015 to 2020. Out of 241, 123 (51%) have serious declared criminal charges, which was 40% for the last election.

In the last few decades, lawmakers with criminal precursors in state assemblies and the Parliament have grown out rightly. As per a report by the Association of Democratic Reforms (ADR), 43% of the MPs chosen to the seventeenth Lok Sabha in 2019 deal with criminal indictments. The highest percentage of members with criminal indictments ever elected for parliament. While in 2004, the percentage of elected members with criminal antecedents was only 24%. Earlier this year, the Hon’ble Supreme court was informed that more than 2,556 sitting legislators in the Parliament and state assemblies are charged with different crimes, and there are 4442 MLAs/MPs who have cases pending against them.

Does the supreme court have jurisdiction over making laws to criminalize politics?

In 2018, the Supreme Court observed that electing candidates with criminal antecedents can shake the foundations of constitutional democracy. As a consequence, the Court guided political parties that they should display their nominees’ criminal indictments in advance on the websites of the party and course them on the print media and electronic media. Court further focused that all political parties must submit adherence reports to the Election Commission. It ordered that the Election Commission of India answer to the court if any political party fails to submit reports.

Such orders and directions by the Supreme court are important, but it is improbable that these directions will help in the decriminalization of Indian politics. In 2018, the Supreme Court dictated an order that merely displaying a candidate’s criminal incidents would not be sufficient to reduce the rising criminalization of politics. Specifically, the Court requested the Parliament to draw legislation that would preclude MPs and MLAs from confronting serious criminal allegations, even before their conviction in cases. Although any such legislation from the side of parliament is far-fetched, the Supreme Court has made it clear that the court will not frame any such legislation as this would infringe upon the executives’ realm.

Why do voters choose leaders with criminal backgrounds?

The main question that arises is, why do Indian citizens choose leaders with criminal antecedents? And why do political parties of the largest democracy in the world give candidature to such leaders with criminal backgrounds?

The criminalization of Indian politics is directly linked with caste-based voting and religious separation among the voters, which was predominantly induced by the political parties for their benefits. On the strength of this divide among the voters all over the nation, the political parties find politicians with criminal antecedents as an asset but not as a liability in elections. Another reason for criminalization is the dulcet relationship between bureaucracy and politicians.

Also, the cost of the election has seen a rapid increase in the last decade. Due to which the political parties want more and more self-financed and wealthier representatives to represent them. These representatives are more likely to win as they possess more resources to contest. Adding to that, the people with criminal antecedents are more likely to have wealth as they venture into illegal activities to gain wealth. People with criminal antecedents are interested to contest in elections as they can easily derive resources, and on winning the elections, a constitutional post can overshadow their criminal antecedents. These on-ground dynamics of the election encourage people with criminal antecedents to contest in the election. As a consequence of these dynamics, people with criminal antecedents turn out to be perfect candidates for most of the political parties.

Considering these social factors, the bearing Supreme court has given is probably not going to tidy up India’s politics, albeit these orders are vital, even though they don’t address the main cause of this issue, which is an institutional drawback. For example, in Uttar Pradesh, certain leaders have been subject to heinous crimes ranging from abduction to multiple murders and igniting riots. Such leaders have been elected to posts as far up as an MP and have openly supported the governments in power. Known to such criminal cases the election commission of India has not taken steps to cancel the candidature of these leaders. Such leaders should be debarred from taking any election at the very nascent stage of reporting cases against them. As the conviction rate is very low and trials get delayed due to influence caused by these leaders’ influence, the whole process gets corrupt.

Indispensable need for reform

Change can be felt when institutional reforms occur, and the executive machinery can react successfully to the expanding needs of the people. When the elected government gives justice to the people and abides by the rule of law, then the citizens may look up to genuine untainted leaders in the elections. Institutional changes are a constantly evolving, long-haul measure. There should be more accountability from the side of executives towards the people, and the Election Commission of India should frame strict guidelines for any candidate with criminal antecedent participating in any election. Decriminalization of Indian politics cannot be done by the Supreme court alone. Until and unless the state machinery and government join hands with the court to fight against this, the issue will prevail, and looking at the recent ADR report, it is very unlikely that the government will want to destabilize itself. 

Kumar Kartikeya is a student of law and co-founder of The Policy Observer. He tweets from @kumarkartikeyaa.
(The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Policy Observer or our members.)

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