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Criminalisation of Indian Politics Amidst Elections: The Road To Eligibility Test

Authored by Srishti Pandey & Ayushman Rai, 2nd-year law students pursuing B.A. LL.B. (Hons.) at National Law University, Jodhpur

Criminalisation of Indian Politics Amidst Elections: The Road To Eligibility Test
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As elections occur in the democratic Indian picture, it becomes more than important to address the primary problem of the political system, which is ingrained in the composition of the law-making body itself. The number of parliamentarians with pending criminal cases against them has increased from 24% in 2004 to 43% throughout the years. A startling 306 (40%) of the 763 Sitting MPs in the Lok Sabha and Rajya Sabha have filed criminal proceedings against themselves, including accusations of murder and crimes against women, according to an investigation by the Association for Democratic Reforms (ADR). When classifying these criminal cases, the ADR study points out that 194 (or 25%) of the sitting MPs are charged with serious crimes. These accusations cover a variety of offences, including crimes against women, kidnapping, murder, and attempted murder.

Thus, it is arguably an unaddressed elephant in the room that the involvement of criminals in the political process has grown over time in the Indian context. This is clearly not a desirable development, one that certainly doesn’t fit in with the democratic principles cherished by constitutionalism. The sacrosanct activity of law making being compromised is the most blatant threat to the rule of law. Since the law-makers themselves are bound by the law they make, it is undesirable at any cost to fill that lawmakers’ position with people who themselves contravene and disrespect the law of the land. But with the ever-increasing ratio of parliamentarians being under criminal allegations, this apprehension is coming to life. The abysmally low turnout of voters in past few elections can be seen as a by-product of this, as people are unable to find an eligible representative, and not just qualified in the strict sense. 

The Representation of People’s Act, 1951 [“The 1951 Act”] holistically deals with the parliamentarians and the process of their elections. Section 82 of the Act talks about disqualification of the candidate using the word ‘conviction’. Moreover, Rule 4A of the Conduct of Election Rules, 1961 enunciates that every candidate should be filing a mandatory affidavit regarding those cases in which he or she is accused of any offence that is punishable with imprisonment for two years or more and cases for conviction of offences other than those mentioned in Section 8 of the Representation of the People Act (ROPA), 1951 and sentenced to imprisonment for one year or more. The problem lies herein, where the word ‘conviction’ is solely used. This implies that an action can only be taken against the person when he has been convicted and he may continue as a parliamentarian as long as his conviction is not secured. Effectively, the law doesn’t bar any individuals who have criminal cases pending against them from contesting elections. It is this discrepancy which has paved way for judicial interpretation and intervention to resist an undesirable interference of crime into politics.

Judicial intervention in this sphere was inevitable, given the constitutional silence on the matter. The 1951 Act further elaborates that a person can be rendered ineligible for contesting elections as a people’s representative if there is a commission of a serious criminal offence. The definition of heinous crimes may change as per time and societal conditions. Debarring of politicians has no effect since rates of conviction are too low and trials themselves are subject to long delays as showcased by recent Law Commission reports. Parliament is required to make a law on the matter as per Article 101 (1) of the constitution, however, Parliament regardless of who is in power has always been reluctant to legislate on the issue. The recommendation regarding the publicity campaigns about the criminal background of candidates by political parties sounds unreasonable. Moreover, as far as affidavits are concerned, voters do not generally read the websites of political parties. Thus providing the salutary deterrent necessary to prevent criminal elements from holding public office. This inevitably leads to a preservation of the probity of representative government.

The Supreme Court observed in K. Prabhakaran v. P. Jayrajan that those who break the law should not make the law. Generally speaking, Enacting disqualification for certain offences aims to prevent individuals with criminal pasts from entering politics and the legislative branch, which possesses significant authority. Individuals with criminal backgrounds can taint the election process by engaging in unlawful behaviour to gain an advantage. This pollution to the electoral regime is extremely detrimental. The Court lead the reasoning to ‘constitutional morality’ in the case of Manoj Narula v. Union of India. Dealing with good governance, it was highlighted by the Court that this theory compels the authorities to keep their political interests aside to ensure public interest and the pure welfare of the nation. In a democracy, voters have a legitimate expectation that the current government would prioritize the public interest over all other interests. The maxim Salus Populi Suprema Lex must be remembered and revered. The wheels of this nation’s success have to be driven by competent governance in a reality where people with responsibility and service-oriented approaches carry out the administration. This is the ambition of today’s citizens. Thus, the selection of candidates with criminal cases against them, as the council of ministers was held incorrect by the courts. Calling the Prime Minster to be the repository of constitutional trust, it asked the selection process to respect the integrity and purity of the constitutional structure. 

The Supreme Court in Public Interest Foundation v. Union of India proposed that disqualifying corrupt parliamentarians will not stop the criminalization of politics. Instead, political parties must be cleansed first. Political parties were directed to publicize their candidates’ pending criminal cases online. The suggestion is for parliament to enact legislation requiring political parties to dismiss leaders accused of “heinous and grievous” offences. In 2017, the Centre was instructed to establish special courts to handle and conduct the trial of politicians’ rapidly increasing crimes. Additionally, political parties were asked to publicize any pending criminal cases against their candidates in 2018. Notably, in Lily Thomas v. Union of India, it was ruled by the Supreme Court that sitting parliamentarians, as well as legislators, convicted of a jail term of two years or more would immediately lose their House or Assembly seats.

Eligibility v. Qualification: The Need For An Eligibility Test

The very preamble of India qualifies and portrays India as a “Sovereign, Socialist, Secular, Democratic Republic”. The very essence of a “Democratic” republic rests on the political framework of a country. As for India, it is the Constitution of India that is at the highest pedestal and governs as the law of the land overseeing this political institution. In India, the elected representatives of Parliament have a significant role in representing the will of the people in a democratic government. Their responsibilities include passing legislation, administering laws, and authorizing funds. To ensure that qualified candidates are elected to office, the Constitution of India and the Representation of People’s Act, of 1951, lay down the “qualification criteria” that candidates must meet to run for office. These criteria may include factors such as age, citizenship, education, criminal history, and other qualifications. To actually understand what the constitution lays for the candidates as qualifications is imperative. An overview of the provisions includes Article 84, Article 173 for qualifications and Articles 102 and Article 191 for disqualifications. Article 84 clearly lays down the qualifications required to be a member of parliament. These include that an individual must be an Indian citizen, must be at least 25 years old to sit in the Lok Sabha, and at least 30 years old to sit in the Rajya Sabha. India has adopted the single citizenship policy when it comes to citizenship criteria, thus, foreigners are ineligible in this regard. Article 173 further delineates the qualifications for a representative in any of the State legislatures. On the same lines as that of Article 84, Article 173 stipulates that if an individual wants to become a member of any state legislature, he is to be an Indian citizen, be at least 25 years to sit in the Legislative Assembly, and 30 to sit in the legislative council. Although these have been implemented as necessary qualifications for determining who can run for elections in Parliament, the country’s eligibility framework is not in line with the ever-changing dynamics and circumstances of the country, leading to issues that inflict irreparable harm to this democracy. To name some, there is the criminalisation of politics added to corruption, negligible educational requirements for political candidates, and abysmally low voter turnout. The states having a larger presence of criminalization in politics, for example, Uttar Pradesh, had lower voter turnout in the 2024 election which was around 57.45%. Almost 26% candidates had criminal proceedings going on in Uttar Pradesh. This considerably reduces the choices that citizens have to elect a responsible candidate, hence discouraging voter turnout. Thus, the lower voter turnout can be seen as a by-product of the criminalisation of politics.  Despite efforts by successive governments to enforce the governing principles of political eligibility as set out in the Constitution, the framework has not been able to adapt uniformly to address these problems. 

Low Educational Qualification 

Renowned constitutional framers, to name a few important personalities such as BR Ambedkar and Rajendra Prasad, propagated minimum educational requirements and specific standards for contesting elections. The damaging consequences of not having educational qualifications in contesting elections were flagged by Rajendra Prasad, who said that it is going to tarnish the democratic fabric of the country. The lack of minimum educational qualifications for political eligibility remains a significant obstacle in the election process in India. Both, the Representation of the People Act and the Indian Constitution, do not provide any minimum education requirements for individuals to represent Parliament or hold office, leaving it to the discretion of the legislature. In the case of Union of India v. Association for Democratic Reforms, the Supreme Court differentiated between the right to vote and the freedom to vote, stating that the power to regulate election practices and to set political eligibility standards lies with the legislature. In 2002, the Supreme Court ruled that candidates running for office must disclose their educational qualifications, criminal records, and financial information. This was done so as this information is essential for voters to make an informed choice during elections. Additionally, the need to cleanse the government by removing the unwanted elements that affect democracy and the legislature’s competency was observed. Subsequently, in the case of People’s Union For Civil Liberties (PUCL) v. Union of India, it was highlighted that the candidates running for office must declare their assets, liabilities, and criminal records before they stand for election. This decision marked a significant contribution towards accountability and transparency. The actions of the Haryana State Government applying and implementing a minimum educational qualification were also approved by the Supreme Court, as seen in the case of Rajbala & Ors v. State of Haryana. Justice Chelameshwar threw light on the effects that education can have, stating, “It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration”. 

The Way Forward: A Test To Determine Political Eligibility 

While the current picture of political qualifications in India allows anyone to enter politics regardless of their background or economic status, the country’s political system faces various issues and challenges. Therefore, the authors suggest that there should be a comprehensive system guided by the doctrine of checks and balances to evaluate individuals who aspire to ensure people’s welfare. Such a test is a political eligibility test. This test would take into account the looming issues, such as the absence of educational requirements and criminalization of politics, and the efforts made so far to tackle this problem. A political eligibility test that takes into account the Indian political system’s specificities. It would focus on assessing the candidate’s educational qualifications, their knowledge of Indian politics and current affairs, their leadership and skill application, and their criminal background. In addition to the assessment of educational qualifications, knowledge of politics and current affairs, criminal background, and leadership skills, another crucial factor to be considered is the candidate’s prior experience in the political arena. To be eligible for the Union Parliament, a candidate must have served in some capacity in any municipality in India and subsequently in the state legislature for a specified time period. Moreover, candidates who wish to contest for a seat in the Union Parliament must demonstrate their competence and experience in a similar position in the State Legislature.

Conclusion For Eligibility v. Qualification 

After analyzing the sources, authorities, legislations, and cases from India, it is apparent that India’s political structure requires a political eligibility test for elected representatives. This need arises from the apparent problems that loom over Indian democracy and political structure. As discussed, issues such as political criminalisation, the absence of educational requirements among members of Parliament, and the absence of concrete standards, call for a comprehensive assessment of the candidates’ qualifications and experience. The Supreme Court of India has expressed the need for reforms to tackle the issues faced by Indian democracy, as highlighted in the cases of PUCL v. Union of India and Union of India v. Association for Democratic Reforms. Thus, it is in the opinion of authors necessary to have a political eligibility test which goes to the roots of the challenges faced in the Indian political framework. The current laws and lawmakers turn a blind eye towards sustainable educated solutions that are intertwined with the needs of the people. The lack of informed officials has led to people opting out of voting or not giving the vote to any party. This calls for a democratic reform that not only shifts the current from not-so-qualified laws to eligible lawmakers bringing change.

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