Criminalization of Politics: Supreme Court Guidelines
“NO EUREKA” is the recent directions issued by the Bench headed by Chief Justice DY Chandrachud to High Courts and trial courts.
The SC directions include: 1) special benches to be set up to monitor trials in over 5000 pending criminal cases against Members of Parliament and State Legislatures to ensure expeditious disposal of cases; 2) register a suo moto case to monitor criminal matters pending against MPs and MLAs; 3) higher priority to criminal cases “punishable with death or life imprisonment”, followed by “cases punishable with imprisonment for five years or more, and then…other cases”; and 5) no adjournments “except for rare and compelling reasons”.
The SC has also directed that “The HC Chief Justice may list cases in which orders of stay of trial have been passed before the special bench to ensure that appropriate orders, including vacation of stay orders, are passed to ensure commencement and conclusion of trial.” It asked the principal district and sessions judge to ensure sufficient infrastructure facility for the designated court and enable it to adopt the necessary technology for effective and efficient functioning.
It is also “NO EUREKA” that the entry of an increasing number of criminals into politics is a serious concern about the integrity of democratic processes. How can one expect criminals masquerading as “Law Makers” enact “Laws” to govern the country contrary to their selfish interests and criminal pursuits. Consequently, good governance and accountability are a forlorn expectation.
Surely, confidence and trust of the constituency in their political representative is necessary for an interactive, efficient and effective functioning of a parliamentary democracy. In retrospect, “We the People '' are to be blamed for opting for criminal leaders as their representatives.
However, for a refreshing change, the Supreme Court Bench has exposed the shortcomings in the judicial processes exploited by political leaders at all levels thereby contributing to the phenomenal criminalization of politics. Can the Judiciary implement the directives with expediency that SC directives deserve? To set an example, the SC must set up Fast Track Special Benches and take suo motto notices of serious criminal cases. In fact, the SC must reject outright all “Stay Petitions” and appeals for adjournments.
In the bygone decades, the blame games were common. Quite normal, it was to invoke “Lack of Political will” as the root cause for the “Criminalization of Politics”. Also, it was attributed to the shortcomings of functioning of Election Commission. Even the Police was also blamed for their inability to enforce law and order within their domains. The real culprits to advance criminalization of politics that is “We the People” are left singled out.
As per the data of the SC, 5,175 subject cases were pending against MPs and MLAs as of November, 2022. Out of the total, there are more than 40%, that is, nearly 2,116 cases are pending for more than five years. Also, criminal cases are pending from 10 to 20 years against MPs/MLAs in various courts. And, it is common knowledge that the pendency and delays are due to legal processes in our justice delivery mechanism. Consequently, the accused MP/MLA completes his/her 5-year term without the conclusion of the trial! Hence, there is a need to fast track the pending cases in a time bound manner.
However, the said bench expressed reservations to give uniform guidelines for trial courts for speedy disposal of cases against lawmakers.
As per the Association for Democratic Reforms (ADR) Report 2023 titled “Analysis of sitting MPs from Lok Sabha and Rajya Sabha of India”, there are 40% of MPs out of 763 Lok Sabha and Rajya Sabha MPs with declared criminal cases pending. Out of the said total, around 25% MPs have declared serious criminal cases against them including cases related to murder, kidnapping, crimes against women etc. During the period 2009-2019, 73 candidates had declared cases related to murder while 278 candidates had declared cases related to Attempt to murder (IPC Section-307). In the 2019 Lok Sabha elections, 159 MPs had declared serious criminal cases against them.
In the case of ‘Crimes against Women’ from 2009 to 2019, there was an increase of 231% in the number of candidates contesting in Lok Sabha elections with declared cases of crime against women. From 2009 to 2019, there was an increase of 850% in the number of MPs with declared cases of crime against women in Lok Sabha. There are 18 MPs and 58 MLAs who have declared cases related to crimes against women. 3 MPs and 6 MLAs have declared cases related to rape.
In reality, there is progressive increase in the number of MPs with criminal charges. Whereas, there were 24% of MPs with pending criminal cases in 2004, the numbers have increased to 43% in 2019. The conviction rate for serious crimes has been falling over the years.
Surprisingly, the average assets of sitting MPs with declared criminal cases are more than assets of MPs with no criminal cases.
Of course, the ADR has identified the reasons for pending cases to include: Weak or slow Legal Framework; Electoral Competition; Money and Muscle Power; Caste and Identity Politics; Lack of Voter Awareness: Political Patronage; State and Local Issues; Weak Political Party Systems; and Political Expediency.
Ipso facto, there is a well-known nexus between crime and politics. The share of major party MPs facing criminal cases in 2019 includes: 6 LJP MPs – 100% serious cases with 50% criminal cases; 16 JD (U) MPs – 81 serious cases with 50% criminal cases; 18 SHS (Shiv Sena) MPs - 61% serious cases with 28% criminal cases; 51 Congress Party MPs – 57% criminal cases with 37% serious cases; 10 BSP MPs – 50% serious cases with 30% criminal cases; 23 DMK MPs – 46% criminal cases with 26% serious cases; 22 YSRCP MPs – 46% serious cases with 36% serious cases; 22 Trinamool Congress MPs – 41% serious cases with 18% criminal cases; 5 NCP MPs – 40% serious cases with 40% criminal cases; 5 SP MPs – 40% serious cases with 40% criminal cases; 301 BJP MPs – 39% criminal cases with 29% serious cases; 9 TRS MPs – 33% serious cases with 22% criminal cases; 12 BJD MPs – 8 serious cases with NIL criminal cases. In sum, all major parties without exception are squarely responsible for nominating candidates with criminal antecedents on the basis of “Winnability” criteria.
Bihar has the highest percentage of MPs with criminal cases followed by Maharashtra.
The lack of political will and loopholes in existing laws have allowed this alarming trend to persist. The time for comprehensive electoral reforms is long overdue, and failure to address the persistent issue of criminalization of politics poses a grave threat to the very fabric of Indian democracy.
Undeniably, there are no “golden rules” in the game of politics – no ethics, morals and values. Political sages and emeritus have been lamenting on the ills tormenting democracy in practice. Let me recall the wisdom of some of them. Plato criticized direct democracy by claiming that the people would be swayed by emotional and deceptive rhetoric, as the people in Athens had supported the disastrous Peloponnesian War, condoned atrocities and breaches of the law, and were responsible for the execution of Socrates.
Winston Churchill stated “Politics are almost as exciting as war, and quite as dangerous. In war you can only be killed once, but in politics many times.” And, Mao Zedong reinforced “Politics is war without bloodshed, while war is politics with bloodshed. Ernest Benn viewed “Politics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedy.” Most apt, “a politician is a fellow who will lay down your life for his country” stated Texas Guinan.
Walter Lippmann stated “Before you can begin to think about politics at all, you have to abandon the notion that there is a war between good men and bad men.” Thomas Jefferson stated “Whenever a man has cast a longing eye on offices, rottenness begins in his conduct.” Winston Churchill stated “Some men change their party for the sake of their principles; others their principles for the sake of their party.” Charles de Gaulle also stated “In order to become the master, the politician poses as the servant. How apt is Nikita Khrushchev who stated “Politicians are the same all over. They promise to build a bridge even where there is no river.”
Samuel Johnson stated “Patriotism is the last refuge of the scoundrel.” Surely, it is grossly unfair to expect scoundrels to play the game of politics based on rules, when the winner takes all the power, wealth, perks and privileges that goes with the elected office. “We'd all like to vote for the best man, but he's never a candidate”, stated Frank McKinney "Kin" Hubbard. George Jean Nathan stated “Bad officials are elected by good citizens who do not vote.” How appropriate is Aesop's view that “We hang the petty thieves and appoint the great ones to public office.” .” P.J. O'Rourke is truly relevant today in India: “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.”
In reality, democracy substitutes election by the incompetent many for appointment by the corrupt few. How apt is George Bernard Shaw, who stated “Democracy is a system ensuring that the people are governed no better than they deserve”. How real is Oscar Ameringer postulation in today’s murky world of democracy: “Politics is the gentle art of getting votes from the poor and campaign funds from the rich, by promising to protect each from the other? If we got one-tenth of what was promised to us in these acceptance speeches there wouldn't be any inducement to go to heaven.”
Around the world, political leaders have amassed power by weakening their parties by deceit, deception, deflection, distraction and disruption. Once in power these self centered, power maniacs corrupt democracy and entrench themselves completely. Winston Churchill succinctly summed up “Democracy is the worst form of government, except all the others that have been tried.
Today, most commonly invoked outburst by opposition parties is “Save Democracy”. Let me highlight that India never had democracy as it was idealistically conceived by sages emeritus’s world over. Stating the obvious, what India got at the stroke of midnight hour on 15 August 1947 was “political freedom from alien slavery”. What followed thereafter during the past 75-years is murder and mayhem of democracy with feudalists, more aptly neo feudalists and neo dynasts, reclaiming their status, power and wealth. The problem isn’t too much democracy — it’s too little.
Which one of the past Heads of the “Four Pillars of the Constitution – Legislature, Executive, Judiciary and Media - can lay claims to be repository of essential qualities of honesty and integrity, and elevate the national discourse with comity and mutual respect?
If some among them claim such a status, they must do introspection over the measures implemented in their own institutions. In retrospect, all of them are squarely responsible for the ills or evils tormenting India’s democracy for not introducing and effectively enforcing them.
Sans bias and prejudice, if one view’s democracy by original conception, it is mutilated beyond recognition. Decadence and decay of cultural, moral, and spiritual disorder is all pervasive. All claiming to be “Save Democracy” champions must go to lunatic asylum or get themselves checked for mental and moral bankruptcy. Whoever talks about “Save Democracy” are truly congenital liars and scoundrels out to fool “We the Gullible People of India”.
Use of money power, if any, has grown astronomically with candidates in some constituencies spending 15-30 crores. Use of money power is inextricably linked to muscle power. Both are mutually inclusive.
The key shortcomings of the Present Electoral System of India have been identified and recorded. If the fundamental steps in the conduct of elections are faulty, then the whole process allows itself to automatically beckon corruption. Delimitation of constituencies and preparation of electoral rolls is the first step - flawed. Laws pertaining to electoral reforms demands – Women’s Reservation Bill (30% reservations), OBC, minorities and SC (A, B, C, D) quota and “Quota-within-Quota” – must be enacted and implemented earliest. Parties with less than 30% of votes win more percentage of seats and claim the right to form governments. Limit the number of terms and duration of terms for the Prime Minister, Chief Minister and Cabinet Ministers to stop the “Dynastic” propagation for eternity. Debar political parties conduct no-holds barred campaigns invoking caste, class and communal rhetoric invoking dominant, fascist, caste and communal ideology to win. Debar those who under declare personal and family members assets.
Time to adopt “second preferential vote’ practice based on first past the 50% of votes polled/eligible needs consideration to overcome the current shortcoming of candidates getting elected on the 20-25% share of votes polled. Also, debar political parties which do not comply with the requirement of inner party democracy. Revise disqualification criteria for persons with criminal, corruption and communal records for life, particularly murder, attempt to murder and rape. Revise current monetary ceiling limits to eliminate under-reporting campaign expenses.
In sum, the faulty electoral processes are responsible for the growth of criminalization of politics which needs to be addressed at the political level, which is well nigh impossible in the present context.
If so, the Judiciary lends hope in addressing many of the shortcomings identified in the present electoral system. Issues of directions by the SC Bench headed by the CJI, are good on paper. What is crucial is the implementation at all levels of the Judiciary from the SC to Trial Courts.
The issue, therefore, is “Can the Judiciary effectively and expeditiously implement and execute the directions?” Or, will the directions fade away with time and the political processes remain criminalizing politics detrimental to consolidation of “Real and Genuine” democracy? My earnest plea to the CJI to effectively cleanse the backlog of “Stays” in his own backyard, particularly adjournments.
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