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Saving India's Vibrant Democracy from criminal smudges: A Legislation is justified

Constitutional functionaries who pledge to uphold constitutional framework from the smudges of corruption, tend to disrupt the very ethics when criminalization strikes politics. Lack of concrete legislation however makes it impossible to regulate such practices which should be absolutely disallowed. Elections have grown increasingly expensive while political parties are growing weaker with lack of funds.

The Constitution bench of Hon’ble Supreme Court in Public Interest Foundation vs Union of India[1]  took cognizance of this widely debated issue and directed the State to frame a law that makes it obligatory for political parties to remove candidates charged with heinous and grievous crimes and refuse ticket to offenders in both parliamentary and Assembly polls. Contesting elections and winning a seat gives politicians a certain degree of protection while opening up new illegal set of money-making opportunities. You may say it’s wrong and such people shouldn’t be allowed to contest, but how to enforce?

The court emphasized on cleaning Indian political system while mentioning Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay and India is in desperate need of such legislation.

Over the years we’ve noted significant changes and effect on the functioning of Indian democracy because of the criminal smudges possessed by our elected representatives. Association for Democratic Reforms [2] in its report found 43% of the newly selected MPs having criminal background after 2019 Lok Sabha elections, of which 18% had serious crimes.

This means, a steep 24% increase to what was after the 2014 elections. When the data speaks for itself and sets a bad precedent every election, we almost think if citizens deserve such leaders representing them?

Three ‘F’ for Citizens: Free, Fair & Faithful elections

Democracy is a continual participative operation and not something limited to a cataclysmic periodic exercise. Credibility is the life-blood of institutions in a democracy, as they say. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. [3] Every citizen holds a right to vote [4] and it is right of the voters to know about the past history including criminal records of the candidate contesting elections. Political parties form the government and man the parliament.[5]

The citizens should be ensured of enough information and resources to make an informed choice, candidates inturn should foster and nurture such citizenry. It is important to ensure that crime-politics nexus is zeroed by enforcing the political parties to work with true faith and strive to uphold the allegiance of our constitution.

It is disheartening to see that important seat at the Parliament being treated as a paradise for criminals who look for unreasonable means of earning money, and further escape the legal scrutiny by unruly use of power.

It is widely noted that:
If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they themselves are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. [6] It acquires life because of the men who control it and operate it.

Ranging from expedite trials of cases or compulsory declaration in a more efficient and transparent manner, India looks upto lot of these alternative mechanisms to remove any criminal factors entering politics. The electorate should be made aware of the role the elected representatives play in order to ensure a vibrant democracy.

It is believed that any malignancy can be cured. Out in out, Criminalisation of politics is fatal but of course not incurable. In India particularly where there is so much scope of development and improvement, our resources are not put to optimum use because of incapable representatives.

The current law limitation which bars convicted candidates from contesting, comfortably ignores the ones being charged and still under trial. Hon’ble Justice Dipak Mishra observed on this very point that:
It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation.

Though the essence of criminal jurisprudence clearly describes a man to be innocent until proven guilty but a law barring someone from contesting based on allegations will be fair because it only clarifies the type of persons who are suitable for holding representative public office in India.

All of this leads us to  restore faith and dignity in the process of election and governance among citizens. In a situation where people largely have no faith and walk along the assumption that nothing’s going to improve in India, a law disqualifying candidates having criminal background will be justified. It is only imperative for our legislation to act before situation worsens.
  1. Public Interest Foundation vs Union Of India, W.P. (Civil) 536 of 2011.
  2. ADR, Lok Sabha Elections 2019 Analysis of Criminal Background, Financial, Education, Gender and other details of Winners, (Last visited: 20th October, 2019).
  3. Mohinder Singh Gill & Anr vs The Chief Election Officer, 1978 AIR 851.
  4. Const Art. 326.
  5. Association For Democratic vs Union Of India, AIR 2001 Delhi 126.
  6. 244Th Report On Electoral Disqualifications, Law Commission of India.

Written by Abhishek Iyer, a 3rd Year B.A.-LL.B. Student at Gujarat National Law University, Gandhinagar

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