The concept of the ‘Rule of Law’ is the basic structure of our constitution. It becomes imperative to observe the rule of law in order to run the country according to the constitutional provisions. However, in reality, often politicians with criminal records get elected and even become part of the government, destroying the whole idea of the rule of law. Law-breakers after becoming the law-makers ensure that only those laws and policies are made that serve their interest and are not in contradiction to it.

Criminalisation of politics is against the ethos of free and fair elections. Politicians with criminal background do pollute the process of election. It also affects the efficacy of the democratic process in delivering good governance. It increases corruption in society and affects the working of public servants reducing people’s faith in democracy as a system of governance. Thus, the criminalisation of politics poses a threat to the very democratic foundation of our country.
 
It is disheartening to see that no political party is taking measures towards the elimination of criminal elements from their fold. Most parties, in their quest for power, seem desperate for candidates with criminal records and deep pockets. Candidates with criminal records are disproportionately wealthy who can not only finance their own campaigns but can fund the parties as well. In this way, parties have also been majorly responsible for the growing criminalisation of politics.
 
Over the last three general elections, there has been an alarming increase in the incidence of criminals in politics. According to the Association for Democratic Reforms (ADR) report 2019, out of the 539 winners of the Lok Sabha 2019 election analysed, 233 (43%) have declared criminal cases against themselves. Out of 542 winners of Lok Sabha elections in 2014 analysed, 185 (34%) had declared criminal cases against themselves. In 2009, 162 (30%) of the 543 winners had declared criminal cases against themselves. Thus, there is an increase of 44% in the number of MPs with declared criminal cases since 2009.
 
According to the report, 159 (29%) winners of the 2019 election have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc. Out of 542 winners of the 2014 elections analysed, 112 (21%) had declared serious criminal cases against themselves. For 2009, the figure was 76 (14%). There is thus an increase of 109% in the number of MPs with declared serious criminal cases since 2009.
 
The ADR report states that out of the 56 union council ministers analysed, 22 (39%) have declared criminal cases against themselves and 16 (29%) have declared serious criminal cases including cases related to attempt to murder, communal disharmony, electoral violations etc.
 
The report also shows that 265 (49%) constituencies in the 2019 elections had three or more candidates with declared criminal cases. As many as 245 (45%) constituencies in the 2014 elections had three or more candidates with declared criminal cases. In 2009, the number was 196 (36%).
 
Currently, under the Representation of the People Act, candidates with criminal past cannot contest elections only after their conviction. Section 8 of the Act disqualifies a person convicted with a sentence of two years or more from contesting elections. However, those who are under trial can contest elections.
 
The Supreme Court in Union of India v. Association for Democratic Reforms held that voters have a fundamental right to know the antecedents of candidates contesting elections to hold public office. The court read in ‘right to be informed’ as a right flowing from freedom of speech and expression.
 
Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate must file an affidavit regarding (i) cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii) cases of conviction for an offence other than any of the offences mentioned in Section 8 of Representation of the People Act, 1951, and sentenced to imprisonment for one year or more. In addition to this, pursuant to the order of the Supreme Court the Election Commission of India in 2003, has issued an order that candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications.
 
However, according to the survey report on ‘governance issues and voting behaviour’ conducted by ADR in 2018, although 97.86% voters felt that candidates with criminal background should not be in parliament or state assembly, only 35.20% voters knew that they could get information on criminal records of the candidates. In relation to voting candidates with criminal antecedents, the maximum number of voters (36.67%) felt that people vote for such candidates because they are unaware of his/her criminal records.
 
For a participative form of democracy, it is important that the voters are educated in the right manner. In a contempt petition raised recently, the Supreme Court issued following directions in the exercise of its constitutional powers under Articles 129 and 142 of the Constitution of India:

1) It shall be mandatory for political parties [at the central and state election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

3) This information shall also be published in: (a) One local vernacular newspaper and one national newspaper; (b) On the official social media platforms of the political party, including Facebook & Twitter.

4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the latter shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this court’s orders/directions.
 
However, unaffected of the directions of the Supreme Court, all major parties contested the Bihar assembly elections last month had given ticket to 37% to 70 % candidates (ADR’s analysis) who had declared criminal cases against themselves. While picking these candidates, the parties had given baseless and unfounded reasons, contrary to the directions given by the Supreme Court, like popularity and experience in social work. These kinds of practices clearly show that political parties are not at all interested in decriminalisation of politics.
 
Voters have the right to know the criminal antecedents of the candidates which come under the purview of Article 19(1)(a) and looking at the alarming situation of the criminalisation of politics and apathy of all the political parties towards electoral reforms, electronic voting machines and paper ballots could be used as a tool for the effective exercise of such a right.
 
The Election Commission of India prints the ballot papers used in the balloting units for Lok Sabha elections in white colour and that for assembly elections in pink colour. If the panels of the candidates with declared convicted case(s) against themselves or declared pending case(s) in which charge(s) has/have been framed against themselves by the court(s) of competent jurisdiction are printed in red colour on ballot papers, and the total number of cases pending against such candidates, the total number of pending cases in which charge(s) has/have been framed against such candidates and the total number of cases in which such candidates have been convicted are printed in the brackets, below or against the names of such candidates, on ballot papers, then voters could identify such candidates and thereby make an informed choice.
 
Therefore, in order to help voters identify candidates with criminal antecedents so that they could make informed choices and to curb criminalisation of politics, the Election Commission should issue necessary directions in order to print the panels of the candidates with declared convicted case(s) against themselves or declared pending case(s) in which charge(s) has/have been framed against themselves by the court(s) of competent jurisdiction in red colour on ballot papers and to print the total number of cases pending against such candidates, the total number of pending cases in which charge(s) has/have been framed against such candidates and the total number of cases in which such candidates have been convicted in the brackets, below or against the names of such candidates, on ballot papers.
 
The framing of charges requires the court to look into the evidence presented by the prosecution and apply its mind to the question of what offences, if any, the accused should be charged with. The framing of charges signifies the commencement of a trial. Alternatively, the court may hear arguments on charge and find that no prima facie case against the accused is made out, upon which the accused is discharged. Therefore, printing the panel of candidate in red colour on ballot papers to include the stage of framing of charges does not infringe upon any fundamental or constitutional right of the candidate.
 
Free and fair elections are the hallmark of a well-functioning democracy. There is a pressing necessity for decriminalisation of politics in India. Under Article 324 of the constitution, the power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every state and of elections to the offices of president and vice-president is vested in the Election Commission and for democratic principles to sustain, the Commission should implement the suggestions given above.

Dr. Bajad is an independent researcher interested in good governance and policy framing.